Opinion
J-S89026-16 No. 1103 EDA 2016
03-15-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMAL L. SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 1, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007676-2009 BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J. MEMORANDUM BY MOULTON, J.:
Former Justice specially assigned to the Superior Court.
Jamal L. Smith appeals from the April 1, 2016 order of the Bucks County Court of Common Pleas denying his petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. Smith's counsel has also filed with this Court a Turner/Finley no-merit letter and a petition to withdraw from representation. We affirm the PCRA court's order and grant counsel's petition to withdraw.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc).
On August 20, 2010, after a four-day trial, a jury convicted Smith of second-degree murder, robbery, and possession of an instrument of crime. On October 14, 2010, the trial court sentenced Smith to an aggregate term of life in prison without the possibility of parole.
18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), and 907(a), respectively.
The PCRA court set forth the factual history underlying Smith's convictions in its May 10, 2016 opinion, which we adopt and incorporate herein. See Opinion, 5/10/16, at 1-12 ("1925(a) Op.").
Smith did not file post-sentence motions. On October 15, 2010, Smith timely appealed to this Court, which affirmed his judgment of sentence on March 29, 2012. On September 13, 2012, the Pennsylvania Supreme Court denied Smith's petition for allowance of appeal.
On October 18, 2012, Smith filed a pro se letter with the PCRA court, which the PCRA court treated as a timely PCRA petition. After the appointment of counsel, Smith filed amended PCRA petitions on March 4, 2013 and February 8, 2016. On February 9 and March 28, 2016, the PCRA court held an evidentiary hearing at which Smith and his trial attorneys, Keith J. Williams and John Fioravanti, Jr., testified. On April 1, 2016, the PCRA court denied Smith's petition.
Between the filing of the first and second amended PCRA petitions, the PCRA court ordered three mental health evaluations to determine whether Smith was competent to participate in the PCRA proceedings. The record shows that Smith suffers cognitive and hearing impairments and had the assistance of sign-language interpreters during the trial and PCRA proceedings. Each mental health evaluation resulted in a determination that Smith was competent to understand the proceedings against him and assist in his own defense. PCRA counsel also verified that he was "satisfied [that Smith] was competent to proceed with the PCRA proceedings." No-Merit Letter at 8 (unpaginated).
On April 7, 2016, Smith filed a timely notice of appeal. On April 11, 2016, the PCRA court directed Smith to file a Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors complained of on appeal within 21 days. In lieu of a Rule 1925(b) statement, Smith's PCRA counsel filed a Rule 1925(c)(4) statement, notifying the court that he intended to file a no-merit letter and a petition to withdraw from representation due to the lack of meritorious issues for appeal. Thereafter, on July 5, 2016, counsel filed with this Court a no-merit letter and a petition to withdraw from representation.
Before we may address the merits of Smith's appeal, we must determine whether his PCRA counsel has satisfied the requirements for withdrawal under Turner / Finley. Counsel must
file a "no-merit" letter detailing the nature and extent of his review and list[ing] each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit.Commonwealth v. Rykard , 55 A.3d 1177, 1184 (Pa.Super. 2012) (internal citation omitted). Counsel also must serve copies of the petition to withdraw and no-merit letter on the petitioner and advise the petitioner that he or she has the right to proceed pro se or with privately retained counsel. Commonwealth v. Widgins , 29 A.3d 816, 818 (Pa.Super. 2011).
In his no-merit letter, PCRA counsel states that he reviewed the record and applicable law, identified the issues Smith wished to raise, and explained why those issues are meritless. He also mailed a copy of the petition and no-merit letter to Smith and informed Smith of his right to proceed pro se or with private counsel. We conclude that PCRA counsel has complied with the dictates of Turner / Finley.
Counsel's initial letter to Smith incorrectly advised Smith that he had the right to proceed pro se or with new counsel if this Court agreed with counsel's position that the issues on appeal lack merit. Therefore, on July 28, 2016, we directed counsel to file with this Court "a letter addressed to [Smith] advising him of his immediate right to proceed pro se or with privately retained counsel" within 14 days. Super. Ct. Order, 7/28/16. Counsel complied and filed a revised letter with this Court on July 28, 2016. The letter states that counsel mailed the letter to Smith on the same day.
Because Smith did not file a pro se brief or a brief by private counsel, we will address the merits of the claims raised by PCRA counsel.
PCRA counsel has identified two issues for appeal: (1) whether trial counsel were ineffective "for not presenting a defense based on the victim's having tried to rob [Smith], causing [Smith] to use a knife in self-defense against the victim, resulting in the victim's death"; and (2) whether trial counsel were ineffective "for not discovering [or] removing the influence of [Smith's family], which exercised undue influence on [Smith] to avoid presenting a defense that he acted in self-defense when he killed the victim." Second Am. PCRA Pet., ¶¶ 2(b), (c); see No-Merit Letter at 6 (unpaginated).
Our review of an order denying PCRA relief is limited to determining "whether the decision of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Melendez-Negron , 123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court's factual findings "unless there is no support for [those] findings in the certified record." Id.
To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must show that: (1) the underlying claim has arguable merit; (2) counsel had no reasonable, strategic basis for his or her act or omission; and (3) but for counsel's act or omission, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball , 724 A.2d 326, 333 (Pa. 1999). Counsel is presumed to be effective, and the petitioner has the burden of proving each of the three prongs by a preponderance of the evidence. Commonwealth v. Steckley , 128 A.3d 826, 831 (Pa.Super. 2015), app. denied, 140 A.3d 13 (Pa. 2016).
Smith first argues that his trial counsel were ineffective for failing to present a self-defense theory to the jury when Smith allegedly had told counsel before trial that he had stabbed the victim because the victim was trying to rob him.
In a July 18, 2009 interview with police, Smith described the incident as follows:
[Smith] stated that he intended on getting some money from the [victim] but the [victim] told him that he did not have any money . . . . [Smith] stated that he pulled out a small folding knife and the [victim] pulled out a brown switch blade. The [victim] then turned in his seat and began kicking [Smith] in the face causing a cut under [Smith's] eye. [Smith] dropped his knife and was holding his hands up to his face when the [victim] tried to stab
him. [Smith] was able to grab the [victim's] arm preventing [him] from stabbing him. As they struggled over the knife [Smith] turned his back slightly to the [victim] and the [victim] bit [Smith] on the left back/shoulder blade. They continued to struggle over the knife until [Smith] was able to pull the knife out of the [victim's] hand. In the course of wresting the knife out of the [victim's] hand [Smith] received a small laceration to the web of his left hand. . . .Trial Ct. Op., 6/10/11, at 7 (quoting Smith's 7/18/09 statement).
As they continued to struggle [Smith] stabbed the [victim] in the leg and also admitted to stabbing the [victim] in the front shoulder, two times in the back and three times in the chest/stomach area. [Smith] stated that he stabbed the [victim] so many times because he was scared because the guy had tried to stab him.
At trial, however, Smith contested the validity of his July 18, 2009 statement to police, stating that "[h]e was popping pills and high during the interview." Id. at 14. Smith also denied killing the victim and testified "that a 'Blood' gang member by the name of Corey Talley a.k.a. Corey Mills committed the murder." Id. at 13. Smith testified that "he initially told police that Mills committed the murder, but later told police that [Smith] did it because he was scared for his safety and the safety of his family," because Mills had threated to kill Smith if he told anyone. Id. at 14.
At the PCRA hearing, Smith testified that before trial, he informed one of his trial counsel, Williams, that he had stabbed the victim because the victim was trying to rob him. N.T., 3/28/16, at 25-26. Williams, however, testified that Smith denied stabbing the victim and told him that Corey Talley had killed the victim. Id. at 48. Williams also testified that he had advised Smith before trial that "the story he told the police might lead to a better verdict," id. at 49, but Smith still denied killing the victim. Smith's other trial counsel, Fioravanti, also testified that Smith never admitted that he had killed the victim. Id. at 63.
We agree with the PCRA court that because Smith denied killing the victim, his attorneys had a reasonable, strategic basis for not presenting a self-defense theory to the jury. Furthermore, as the PCRA court found, "[e]ven if counsel had presented such a defense, the outcome of the proceedings would not have been different due to the overwhelming evidence presented at trial." 1925(a) Op. at 17-18. We conclude that the record supports the PCRA court's findings.
At the PCRA hearing, Smith testified that he had lied to the jury when he denied killing the victim and implicated Corey Talley in the murder. N.T., 3/28/16, at 40-41. --------
Next, Smith argues that trial counsel were ineffective for failing to remove the undue influence of his family. This claim lacks merit.
After hearing the testimony of Smith and his trial attorneys at the hearing, the PCRA court found:
According to [Smith], his mother threatened him and told him that if he told the truth during trial, she would kill his kids. Besides this alleged threat, [Smith] testified that his mother said she "could get the reward money" if the appellant lied. He testified that his mother also told him not to say anything when she visited [Smith] at prison. No evidence was presented to support these bald assertions. Thus, without more, [Smith's] underlying claim is meritless.
According to Mr. Williams, although [Smith's] mother did not believe that her son killed the victim and might have influenced her son because of this belief, she "tried to be as cooperative as she could be under the circumstances." Moreover, when [Smith] met with his lawyers with his mother present, she did not tell [him] what to say at trial. However, when [Smith] met with his lawyers alone, he still failed to admit to killing the victim.1925(a) Op. at 18-19 (citations omitted). The PCRA court credited the testimony of Williams and Fioravanti and discredited Smith's testimony. Because the record supports the PCRA court's credibility determinations, we are bound by them. See Commonwealth v. Roane , 142 A.3d 79, 86 (Pa.Super. 2016). Accordingly, we conclude that the PCRA court properly denied Smith's PCRA petition.
Order affirmed. Petition to withdraw granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/15/2017
Image materials not available for display.