Opinion
J-S70038-16 No. 2432 EDA 2015
10-26-2016
COMMONWEALTH OF PENNSYLVANIA v. FURMAN OSBORNE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 17, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0803611-2004 BEFORE: OLSON, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Furman Osborne ("Osborne"), pro se, appeals from the Order dismissing his Petition filed pursuant to the Post Conviction Relief Act., We affirm.
The PCRA court indicates that Osborne's name was previously misspelled as "Osbourne" in the trial court and direct appeal proceedings. See PCRA Court Opinion, 3/9/16, at 1 n.1.
Although Osborne indicates on the cover of his brief that he is appealing from the Order "granting [him] the right to file an appeal," the contents of his brief, as well as the date of the Order appealed from, make clear that he is appealing from the Order dismissing his second PCRA Petition.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 3/9/16, at 1-6.
On appeal, Osborne raises the following issues for our review:
I. Whether [Osborne] is entitled to relief on his claim of [appellate] counsel['s] ineffective assistance for being denied a fair and adequate review of his conviction due to inaccuracies, and alterations on the certified record?
II. Whether the PCRA court erred in dismissing [Osborne's PCRA] Petition [] (filed on February 18, 2011) as his second PCRA Petition?
III. Whether [Osborne] is entitled to relief on his claim of [appellate] counsel['s] ineffective assistance for failure to raise [a] claim that [the] jury charge in reference to the date of the indictment denied [Osborne] a fair trial?
IV. Whether [Osborne] is entitled to relief on his claim of trial counsel's ineffective assistance for failure to object to the introduction of an irrelevant and prejudicial photograph of the victim with his children (Commonwealth Exhibit C-24)[,] along with the testimony of Commonwealth witnesses?
V. Whether [Osborne] is entitled to relief on his claim of trial counsel's ineffective assistance for failing to object to the questioning of [Osborne] in reference to [Osborne's] military history, prior bad act[]s, and perjury by the Commonwealth['s] prosecutor?
VI. Whether [Osborne] is entitled to relief on his claim of trial counsel's ineffective assistance for failure to object to the prosecutor's misconduct on questions that inflamed the passions of the jurors to act out of sympathy for the victim and the victim's family?
VII. Whether [Osborne] is entitled to relief on his claim of trial counsel's ineffective assistance for failing to object [to,] or request [that a] jury charge be given for[, the] prosecutor's closing arguments [] and misconduct?
VIII. Whether [Osborne] is entitled to relief on his claim of trial counsel's ineffective assistance for failure to investigate and prepare adequately for trial?
IX. Whether the PCRA court erred by denying [Osborne] an evidentiary hearing for his PCRA claim[]s of ineffective
assistance of counsel because the[]re were material issues in dispute?Brief for Appellant at 3 (capitalization omitted, issues renumbered for ease of disposition).
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. 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.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Eight of Osborne's nine issues on appeal assert various claims of ineffective assistance of his appellate and trial counsel.
To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must ... demonstrate: (1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel's actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel's error. To prove that counsel's chosen strategy lacked a reasonable basis, a petitioner must prove that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. Regarding the prejudice prong, a petitioner must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Counsel is presumed to be effective; accordingly, to succeed on a claim of ineffectiveness[,] the petitioner must advance sufficient evidence to overcome this presumption.Commonwealth v. Johnson , 139 A.3d 1257, 1272 (Pa. 2016) (internal citations and quotation marks omitted).
In his first issue, Osborne contends that his appellate counsel was ineffective for failing to pursue a claim on direct appeal that the trial court record was altered and inaccurate, thereby preventing Osborne from properly developing claims of prosecutorial misconduct, perjury, obstruction of justice and ineffective assistance of trial counsel. Brief for Appellant at 12. Specifically, Osborne asserts that, although the prosecutor read portions of Osborne's military record to the jury, his military record was never turned over to the defense or made part of the trial court record. Id. at 13. Osborne also claims that remarks made by the prosecutor and several witnesses were removed from the record by the court stenographer, in bad faith, and that the stenographer also deleted the audio recording of the trial. Id. Osborne indicates that appellate counsel "did investigate the issue with the [s]tenographer, who stated the record was complete." Id. at 14. However, Osborne argues, appellate counsel should not have believed the stenographer, and was ineffective for failing to raise a claim regarding the record. Id.
On direct appeal, Osborne raised a similar, if not identical issue, i.e., that "appellate counsel should have ... informed the trial court that the trial and sentencing notes of testimony are missing and/or incomplete." Commonwealth v. Osbourne , 988 A.2d 726 (Pa. Super. 2009) (unpublished memorandum at 9). In ruling on the Petition, this Court addressed Osborne's claim that the record was incomplete, and summarily found no merit to the claim. See Osbourne , 988 A.2d 726 (unpublished memorandum at 9). Because Osborne's first claim has been previously litigated, it is not cognizable under the PCRA. See 42 Pa.C.S.A. §§ 9543(a)(3), 9544(a)(2); see also Commonwealth v. Spotz , 18 A.3d 244, 260 (Pa. 2011).
While Osborne's direct appeal was pending, his appellate counsel sought to withdraw from representation and, accordingly, filed a Petition for Remand for the appointment of new counsel based on Osborne's claim of ineffective assistance of appellate counsel. See Osbourne , 988 A.2d 726 (unpublished memorandum at 8-9). In her Petition, direct appeal counsel indicated that Osborne believed that she was ineffective because she did not raise this claim in her appellate brief filed on behalf of Osborne. See id.
In his second issue, Osborne contends that the PCRA court should have granted an evidentiary hearing regarding his claim that the record is incomplete. Brief for Appellant at 29.
Based on our determination that Osborne's first issue, regarding the completeness of the record, is not cognizable under the PCRA, we conclude that Osborne's second issue lacks merit. See 42 Pa.C.S.A. §§ 9543(a)(3); Spotz , supra.
In his third issue, Osborne contends that his appellate counsel was ineffective for failing to raise a claim that the trial court erred by instructing the jury that they could convict Osborne of homicide even if they were not satisfied that he committed the crime on the particular date alleged in the indictment. Brief for Appellant at 15. Osborne asserts that the date of the murder was an essential element of the crime, and his defense counsel prepared Osborne's defense on this basis. Id. at 16-17. Osborne claims that by giving the challenged jury instruction, the trial court denied him notice and due process. Id. at 17.
Osborne has not included the challenged instruction in his brief. However, in its Opinion, the PCRA court set forth the instruction, as follows:
The indictment in this case ... alleges that the crime was committed on or about May 27 of 2004. You are not bound by the date alleged in the indictment. It is not an essential element of the crime charged.PCRA Court Opinion, 3/9/16, at 8 (citing N.T., 11/13/06, at 162).
You may find [Osborne] guilty if you are satisfied beyond a reasonable doubt that he committed the crime charged in the indictment even though you are not satisfied that he committed it on the particular date alleged in the indictment.
In its Opinion, the PCRA court addressed Osborne's third issue and determined that it lacks merit. See PCRA Court Opinion, 3/9/16, at 8-9. The PCRA court's determination is supported by the record and is free of legal error. Therefore, we affirm on this basis as to Osborne's third issue. See id.; see also Commonwealth v. Einhorn , 911 A.2d 960, 978 (Pa. Super. 2006) (holding that the date of the murder was not an essential element of the crime of homicide, and instructing that indictments are not to be construed in an overly technical manner).
In his fourth issue, Osborne contends that his trial counsel was ineffective for failing to object to the introduction into evidence of a photograph of the victim with his children. Brief for Appellant at 17. Osborne asserts that the photograph was inflammatory and prejudicial, and that he was not given notice that the Commonwealth sought to introduce the photograph. Id. Osborne claims that the trial court erred by admitting the photograph, and trial counsel was ineffective for failing to raise an objection, move for a mistrial or request a cautionary instruction. Id.
The admission of photographs is a matter vested within the discretion of the trial court. Commonwealth v. Rivers , 644 A.2d 710, 716 (Pa. 1994). The trial court will not be found to have abused that discretion unless the essential evidentiary value of the photograph is clearly outweighed by the inflammatory effect the picture will have upon the minds and passions of the jurors. Id.
In this case, it is not apparent that the photograph had the threshold impact of evoking sympathy for the victim in the minds or hearts of the jurors. See Commonwealth v. Blystone , 549 A.2d 81, 90 (Pa. 1988). The assessment of the PCRA court was that Osborne suffered no prejudice as a result of the photograph being shown to the jury. See PCRA Court Opinion, 3/9/16, at 9. Our review of the record reveals that Commonwealth introduced the photograph through Enez Lundy ("Lundy"), the mother of three of the victim's children, who merely identified the victim and their children in the photograph. See N.T., 11/09/06, at 201. The trial court then permitted Lundy to show the photograph to the jury. See id.
Nevertheless, we are mindful that in Commonwealth v. Story , 383 A.2d 155, 160 (Pa. 1981), our Supreme Court held that photographs of a victim and/or his family, which are irrelevant to a determination of guilt or innocence, are inadmissible. The Commonwealth's stated purpose in offering the photograph of the victim and his children was to establish that he had been a "life in being" prior to the homicide. See Brief for the Commonwealth at 14. However, Osborne and Lundy, as well as Deatrice Kennedy (the victim's mother), Brandi Burrell (the mother of one of the victim's children) and Niki Patton, each testified that the victim was alive shortly before his disappearance. See Rivers , 644 A.2d at 716 (holding that a photograph of the victim was not necessary to establish that he had been a "life in being" before the homicide where trial witnesses had established this fact). Additionally, the coroner, Bennett G. Preston, M.D., testified that the victim's death resulted from being shot 15 times. See id. (holding that the coroner's testimony that the victim's death resulted from the beating and stab wounds established that the victim was a life in being prior to the homicide). Thus, the existence of the victim as a life in being was clearly established through the testimony of various witnesses, and the Commonwealth did not need to introduce the photograph to establish this fact. See id. Moreover, the photograph was not relevant to the question of Osborne's guilt or innocence. See Story , 383 A.2d at 160. Therefore, we hold that the trial court erred when it admitted the photograph into evidence.
However, our inquiry does not end with this conclusion. The question remains as to whether the error in admitting the photograph was "harmless beyond a reasonable doubt." Story , 383 A.2d at 164. An error is harmless when "the evidence of guilt was so overwhelming, and the error ... so insignificant by comparison, that the error was harmless beyond a reasonable doubt." Id. at 169.
Our review of the record reflects that the evidence of Osborne's guilt, as described in the PCRA court's Opinion, was overwhelming, and that the error was insignificant by comparison. See PCRA Court Opinion, 3/9/16, at 2-6. Accordingly, we conclude that the error was harmless beyond a reasonable doubt, and Osborne is not entitled to relief on this claim. See id.
In his fifth issue, Osborne contends that his trial counsel was ineffective for failing to object to the questioning of Osborne regarding his military history, which, Osborne asserts, constitutes inadmissible prior bad acts. Brief for Appellant at 20. Osborne claims that "[t]he Commonwealth attempted [to,] and was successful at[,] painting [Osborne] as a violent[,] trained killer who had no self[-]control, nor concern for human life, and who got kicked out of the military because his violence could not be controlled." Id. at 21. Osborne also contends that the prosecutor committed perjury when he stated in court that Osborne had been kicked out of the military for fighting. Id. at 22. Osborne asserts that the prosecutor's remarks were made "to prejudice the jury, forming in their minds a fixed bias and hostility toward [Osborne]." Id.
This statement is not in the record. Rather, Osborne claims that this statement was removed from the notes of testimony by the court stenographer, in bad faith. See Brief for Appellant at 13, 22.
In its Opinion, the PCRA court noted that Osborne had failed to identify in his Concise Statement which of the prosecutor's questions were improper. See PCRA Court Opinion, 3/9/16, at 9.
If an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998). This Court may find waiver where a concise statement is too vague. Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa. Super. 2011). "A Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all." Commonwealth v. Dowling , 778 A.2d 683, 686-87 (Pa. Super. 2001). Accordingly, because Osborne failed to identify the specific questions that were allegedly improper, we conclude that he waived this issue.
Additionally, in his brief, Osborne failed to cite to the specific places in the record where such questions are located, in violation of Pa.R.A.P. 2119(c). Osborne's general reference to a 48-page section of the notes of testimony is insufficient to satisfy our appellate rules. See Commonwealth v. LaCava , 666 A.2d 221, 234-35 (Pa. 1995) (holding that no relief was due where the defendant generally referred to 21 pages of the record in support of his argument that the prosecutor made improper comments, without specifically identifying the alleged prejudicial comments).
In his sixth issue, Osborne contends that trial counsel was ineffective for failing to object to the introduction of victim impact testimony, which caused the jury to act out of sympathy for the victim and his family. Brief for Appellant at 23-24. Osborne asserts that such testimony is inadmissible under Pa.R.E. 402 and 403, and that the prosecutor acted improperly by eliciting such testimony. Id. at 25. Osborne claims that such testimony violated his rights to due process and equal protection under the Constitutions of the United States and Pennsylvania. Id.
In its Opinion, the PCRA court addressed Osborne's sixth issue and determined that it was waived, based on Osborne's failure to identify any of the objectionable questions asked by the prosecutor. See PCRA Court Opinion, 3/9/16, at 9 (wherein the PCRA court noted: "[w]e have no idea what statements [Osborne] refers to and cannot guess."); see also Dowling , 778 A.2d at 686 (holding that "[w]hen a court has to guess what issues an appellant is appealing, that is not enough for meaningful review."). The PCRA court's determination is supported by the record and is free of legal error. Therefore, we affirm on this basis as to Osborne's sixth issue. See PCRA Court Opinion, 3/9/16, at 9.
In his seventh issue, Osborne contends that trial counsel was ineffective for failing to object to comments made by the prosecutor during closing arguments. Brief for Appellant at 26. Osborne asserts that the prosecutor "should not ask the jury to consider the outcome of the case for the victim, the victim's children, or the victim's family[,] nor suggest their interest should be to see [Osborne] convicted[,] nor tell the jury that [Osborne] is a liar[,] nor [] argue that a missing witness would have testified adversely to the defense ...." Id. (citations to the record omitted). Osborne claims that the prosecutor's remarks were improper, and that he was prejudiced by his trial counsel's failure to object to the comments. Id. at 27.
In its Opinion, the PCRA court addressed Osborne's seventh issue, and noted that Osborne had failed to identify any of specific remarks made by the prosecutor which were allegedly improper. See PCRA Court Opinion, 3/9/16, at 10 (stating that Osborne "fails to identify exactly what comments he complains about."). As indicated above, this Court may find waiver where a concise statement is too vague. See Hansley , 24 A.3d at 415. Because Osborne failed to specify the allegedly improper prosecutorial comments, thereby forcing the PCRA court to speculate as to which comments he was referring to, we deem this issue waived. See Dowling , supra .
In his eighth issue, Osborne contends that his trial counsel was ineffective for failing to investigate possible eyewitnesses, including "Mr. Muhammed" and "Sharon Jones," who were mentioned by a Commonwealth witness during his trial testimony. Brief for Appellant at 27. Osborne asserts that trial counsel was aware of these witnesses, and that his failure to interview them prior to trial arguably constitutes per se ineffectiveness. Id. at 27-28. Osborne also claims that trial counsel was ineffective for (1) failing to "conduct an investigation in reference to taking photo[]s of the crime scene[;]" (2) failing to obtain phone records; (3) failing to file a motion to suppress the murder weapon; and (4) stipulating to the murder weapon at trial. Id. at 28.
In its Opinion, the PCRA court addressed Osborne's issue, i.e., that trial counsel failed to investigate and adequately prepare for trial, and determined that the issue was waived based on Osborne's failure to identify what additional evidence or witnesses should have been presented at trial, but were not, due to trial counsel's ineffectiveness. See PCRA Court Opinion, 3/9/16, at 10 (wherein the PCRA court stated "significantly, in none of [Osborne's] pleadings did he provide any affidavit or certification demonstrating what additional evidence or witness[es] should have been presented."). The PCRA court's determination is supported by the record and is free of legal error. Therefore, we affirm on this basis as to Osborne's eighth issue. See id.; see also Commonwealth v. Brown , 767 A.2d 576, 582 (Pa. Super. 2001) (holding that trial counsel will not be found ineffective for failing to investigate or call a witness unless there is some showing by the appellant that the witness's testimony would have been helpful to the defense).
We further observe that Osborne has failed to demonstrate (1) that "Mr. Muhammed," "Sharon Jones," and other unidentified witnesses were willing and able to appear to testify on his behalf at trial; (2) the substance of the proposed testimony that these witnesses would have given; or (3) that such proposed testimony was necessary in order to avoid prejudice to Osborne. See Commonwealth v. Treiber , 121 A.3d 435, 454 (Pa. 2015).
The PCRA court also addressed Osborne's issue that trial counsel should have sought suppression of the murder weapon and should not have stipulated to the weapon at trial, and concluded that the issue was without merit on the basis that Osborne "has advance[d] no legal theory or authority to demonstrate why the evidence should have been suppressed ...." PCRA Court Opinion, 3/9/16, at 10. Osborne's argument on appeal is equally undeveloped. See Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) (explaining that an appellant waives issue on appeal where he fails to present the claim with citations to relevant authority or develop the issue in a meaningful fashion capable of review). As the PCRA court's determination is supported by the record and is free of legal error, we affirm on this basis as to Osborne's eighth issue. See PCRA Court Opinion, 3/9/16, at 10.
As Osborne's bald assertions that trial counsel failed to (1) investigate "taking photo[]s of the crime scene[;]" and (2) obtain phone records were not included in his Concise Statement, these claims are waived. See Lord , 719 A.2d at 309.
In his final issue, Osborne contends that his PCRA Petition was timely filed, and that the PCRA court erred by dismissing his Petition as untimely filed. Brief for Appellant at 12. Osborne asserts that, because his Petition was timely filed, this Court should remand the case for an evidentiary hearing on his claims. Id.
In its Opinion, the PCRA court notes that Osborne's Petition was timely filed, and that it inadvertently dismissed the Petition as untimely. See PCRA Court Opinion, 3/9/16, at 11 n.5. However, the PCRA court also determined that its dismissal Order was proper, given that all of Osborne's claims are without merit. See id. at 2. As we agree with the PCRA court's determination that Osborne's claims are without merit, we affirm its Order dismissing Osborne's Petition. See Commonwealth v. Doty , 48 A.3d 451, 456 (Pa. Super. 2012) (holding that this Court may affirm the PCRA court's order on any basis).
Order affirmed.
Judge Ott joins the memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/26/2016
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