Opinion
J-S02044-19 No. 882 EDA 2018
03-20-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. ALONZO WALLACE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 9, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008101-2014 BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.E.:
Appellant, Alonzo Wallace, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. In early January 2014, Appellant's coconspirator, Kimberly Cook, encountered and befriended Victim, a pizza delivery driver. While exchanging phone numbers with Victim, Cook observed US currency on the floor of Victim's vehicle. Cook told her boyfriend, co-defendant Hakim Blatch, about Victim and asked Blatch to rob Victim. Blatch agreed and arranged for co-defendants, Appellant and Quadir Jeffries, to aid in the robbery. On January 18, 2014, Cook arranged to meet Victim under the pretense of a sexual encounter. Once at Victim's apartment, Cook allowed Blatch, Jeffries, and Appellant to enter the building. Blatch, Jeffries, and Appellant then attacked Victim, beat him, and stole a tin containing marijuana and cash. When Victim's neighbor heard the commotion and opened his door to see what was happening, Appellant shot at the neighbor through the door. The bullet struck Victim's neighbor in his left arm.
Victim, Victim's neighbor, and Appellant's cohorts identified Appellant as the shooter in the case, and police arrested Appellant on June 11, 2014. On December 10, 2015, a jury convicted Appellant of two counts of aggravated assault, plus one count each of burglary, robbery, conspiracy, and carrying a firearm without a license. The court sentenced Appellant on February 17, 2016, to an aggregate thirty (30) to sixty (60) years' imprisonment. This Court affirmed the judgment of sentence on April 17, 2017. See Commonwealth v. Wallace , 169 A.3d 1170 (Pa.Super. 2017) (unpublished memorandum).
On May 11, 2017, Appellant filed a pro se PCRA petition. The court appointed PCRA counsel, who filed an amended petition seeking reinstatement of Appellant's rights to file a petition for allowance of appeal with our Supreme Court, but he later withdrew that request. On December 8, 2017, PCRA counsel filed a Turner/Finley letter and a motion to withdraw as counsel. Counsel supplemented his Turner/Finley letter on January 10, 2018. On January 26, 2018, the court issued notice of its intent to dismiss the PCRA petition without a hearing, per Pa.R.Crim.P. 907. Appellant pro se responded on February 15, 2018. On March 9, 2018, the court dismissed Appellant's PCRA petition and granted counsel's motion to withdraw. Appellant timely filed a notice of appeal on March 23, 2018. On the same day, the court ordered Appellant to file a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b); Appellant timely complied.
Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley , 550 A.2d 213 (1988).
Appellant raises the following issues on appeal:
I. (a) DID THE PCRA COURT ERR WHEN IT DENIED [APPELLANT'S] PCRA PETITION WHEN TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO TIMELY FILE OMNIBUS PRETRIAL MOTIONS?
(b) WAS PCRA COUNSEL INEFFECTIVE FOR FAILING TO ARGUE THIS ISSUE AND REQUEST AN EVIDENTIARY HEARING?
II. (a) DID THE PCRA COURT ERR WHEN IT DENIED [APPELLANT'S] PCRA PETITION CLAIMING TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A SEVERANCE MOTION PRE-TRIAL?
(b) WAS PCRA COUNSEL INEFFECTIVE FOR FAILING TO ARGUE THIS ISSUE AND REQUEST AN EVIDENTIARY HEARING?
III. (a) DID THE PCRA COURT ERR WHEN IT DENIED [APPELLANT'S] PCRA PETITION WHEN TRIAL COUNSEL FAILED TO FILE A MOTION ARGUING THE WEIGHT OF THE EVIDENCE POST-SENTENCE?
(b) WAS PCRA COUNSEL INEFFECTIVE FOR FAILING TO ARGUE THIS ISSUE AND REQUEST AN EVIDENTIARY HEARING?
IV. (a) DID THE PCRA COURT ERR WHEN IT DENIED [APPELLANT'S] PCRA PETITION WHEN TRIAL COUNSEL FAILED TO OBJECT TO COMMONWEALTH WITNESS, KIMBERLY COOK'S HEARSAY TESTIMONY?
(b) WAS PCRA COUNSEL INEFFECTIVE FOR FAILING TO ARGUE THIS ISSUE AND REQUEST AN EVIDENTIARY HEARING?
V. (a) DID THE PCRA COURT ERR WHEN IT DENIED [APPELLANT'S] PCRA PETITION WHEN TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL BY ARGUING THE MERGER DOCTRINE?
(b) WAS THE PCRA COUNSEL INEFFECTIVE FOR FAILING TO ARGUE THIS ISSUE AND REQUEST AN EVIDENTIARY HEARING?
VI. (a) DID THE COMMONWEALTH FAIL TO PROVE THE ELEMENTS OF AGGRAVATED ASSAULT W/SERIOUS INJURY WITH REGARDS TO MR. SCOTT?
VII. (a) DID THE PCRA COURT ERR WHEN IT DENIED [APPELLANT'S] PCRA PETITION?
(b) DID PCRA COUNSEL, JOHN P. COTTER PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FILED A TURNER/FINLEY LETTER AND FAILED TO ARGUE ANY OF THE ABOVE SEVEN ISSUES WHEN ALL SEVEN ISSUES HAVE MERIT AND PCRA COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN EVIDENTIARY HEARING?
VIII. ATTORNEY ROBERT E. TRIMBLE (TRIAL COUNSEL) PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO REQUEST A KLOIBER INSTRUCTION PURSUANT TO COMMONWEALTH V. KLOIBER , [378 PA. 412, 106 A.2D 820 (1954)] AND WAS ATTORNEY COTTER (PCRA COUNSEL) INEFFECTIVE FOR FAILING TO PRESENT THIS CLAIM IN AN AMENDED PCRA PETITION WHEN [APPELLANT] RAISED THIS ISSUE IN HIS 907 RESPONSE?
IX. WAS ATTORNEY JOHN P. COTTER (PCRA COUNSEL) INEFFECTIVE FOR FAILING TO REQUEST AN EVIDENTIARY
HEARING WHEN [APPELLANT] PRESENTED "MATERIAL FACTS" WITHIN HIS PRO SE PCRA PETITION AND DID JUDGE BRONSON ABUSE HIS DISCRETION FOR FAILING TO ADDRESS [APPELLANT'S] ISSUES IN AN INDEPENDENT REVIEW AND OPINION AND DID THE HONORABLE JUDGE GLENN B. BRONSON ABUSE HIS D[I]SCRETION FOR FAILING TO ORDER THE COMMONWEALTH FILE AN ANSWER PURSUANT TO RULE 906?(Appellant's Brief at 10-11).
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah , 42 A.3d 335 (Pa.Super. 2012).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Glenn B. Bronson, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed May 25, 2018, at 3-15) (finding: (1) Appellant fails to identify form of relief counsel should have sought in omnibus pretrial motion so claim is technically waived; absent reason to file pretrial motion, counsel cannot be deemed ineffective for failing to file one; (2) record belies Appellant's severance claim, where counsel did file motion for severance, which court properly denied after hearing; (3) record belies Appellant's weight claim, where counsel did file post-sentence motion challenging weight of evidence, which court properly denied and appellate court rejected on appeal; (4) Appellant's hearsay claim lacks arguable merit, where prior statements were admissible under exceptions to hearsay rule, such as prior inconsistent statements to police, which witness signed and adopted; statements of Appellant were admissible as admission of party opponent or in furtherance of ongoing conspiracy; (5) Appellant's merger claim lacks arguable merit, where aggravated assault and robbery did not merge for sentencing purposes under circumstances of this case; (6) record belies Appellant's sufficiency claim, where counsel did file post-sentence motion challenging sufficiency of evidence regarding aggravated assault/serious bodily injury, which court properly denied and appellate court rejected on appeal; (8) Appellant's Kloiber issue lacks arguable merit, where counsel had no reason to request instruction; witness had adequate basis for identification of Appellant and had no difficulty identifying him in video stills from crime scene, in photo array, and at trial; (7) and (9) Appellant's issues were frivolous or lacked arguable merit, so PCRA counsel cannot be deemed ineffective for filing Turner/Finley no-merit letter; likewise, PCRA court had no reason to hold hearing on Appellant's claims). The record supports the court's decision to deny PCRA relief without a hearing on the grounds asserted. Accordingly, we affirm based on the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/20/19
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