Opinion
No. 3312 EDA 2012 J-S61020-13
02-21-2013
COMMONWEALTH OF PENNSYLVANIA Appellee v. QUENTIN ALLEN WILSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 2, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000239-2008
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J. MEMORANDUM BY MUNDY, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Quentin Allen Wilson, appeals from the November 2, 2012 order dismissing without a hearing his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After considered review, we affirm based on the sound and thorough opinion of the PCRA court.
This Court, quoting the trial court in a memorandum affirming Appellant's revocation sentence, previously summarized the history of this case as follows.
Commonwealth v. Wilson, 6 A.3d 550 (Pa. Super. 2010) (unpublished memorandum).[Appellant] initially appeared before the [trial c]ourt in a non-jury trial for allegedly raping a fellow homeless person, Christine Pasquarello, after she had consumed a large
quantity of alcohol and passed out. Having a reasonable doubt on the issue of penetration, the [trial c]ourt acquitted [Appellant] of the charges of rape and sexual assault but convicted him of indecent assault and indecent exposure. [Appellant] waived his rights to a pre-sentence report and mental health evaluation and the [trial c]ourt proceeded directly to sentencing. [The court sentenced Appellant to a term of six to twenty-three months in county prison followed by a three year probationary term]. While granting [Appellant] immediate parole, the [trial c]ourt set a series of conditions for [Appellant's] release, including that [he] stay away from Ms. Pasquarello and her friend, Joseph Schlacter, who were both witnesses at the trial. The [trial c]ourt also ordered [Appellant] to stay away from the area under the I-95 overpass where Ms. Pasquarello and Mr. Schlacter lived. The [trial c]ourt explicitly warned [Appellant] that a violation of the order to stay away from Ms. Pasquarello and Mr. Schlacter would constitute a violation of [Appellant's] parole and probation for which he could be sentenced to three and one-half to seven years['] incarceration.Sentencing Court Opinion, 11/16/2009, 2-3 (notes of testimony omitted).
At the revocation hearing held on June 12, 2009, Ms. Pasquarello testified that one night in early October of 2008, she was under the overpass with Mr. Schlacter when she saw [Appellant], who yelled, "I am going to kill you, Joe. I am going to get that bitch." Ms. Pasquarello testified that [Appellant] came by the overpass at night two more times over the next two weeks and again threatened her and Mr. Schlacter.
At the conclusion of the revocation hearing, the sentencing court terminated Appellant's parole,
revoked his probation, and sentenced him to a total of two and one-half to five years['] incarceration.
Appellant filed a direct appeal and this Court affirmed the judgment of sentence on July 7, 2010. See id. Appellant did not petition our Supreme Court for allowance of appeal. On January 5, 2011, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA petition on April 23, 2012, and a supplemental amended PCRA petition on May 4, 2012. The Commonwealth filed a motion to dismiss Appellant's PCRA petitions on September 19, 2012. Pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure, the PCRA court filed a notice of its intent to dismiss Appellant's PCRA petition. Appellant filed no response to the notice. The PCRA court dismissed Appellant's PCRA petition on November 2, 2012. Appellant filed a timely notice of Appeal on November 27, 2012.
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal.
I. The PCRA court erred by denying [Appellant] PCRA relief because counsel was ineffective for failing to call witnesses at the Daisey Kates hearing. [Appellant]'s common law wife, Elizabeth Hogan and his sister, Terri Brown, were available to testify on [A]ppellant's behalf, but counsel failed to call theseAppellant's Brief at 3.
witnesses. [Appellant's] counsel had knowledge of these witnesses, their potential testimony and that they were available to testify at the Daisey Kates hearing.
II. The PCRA court erred by not conducting a PCRA evidentiary hearing because [A]ppellant's petition for post conviction relief is facially sufficient to warrant an evidentiary hearing as it contains facts, that if proven, would entitle him to relief.
We acknowledge the following principles, guiding our consideration of an appeal from the denial of PCRA relief.
Our standard of review is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding.Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations omitted), cert. denied, Busanet v. Pennsylvania, 22013 WL 3062030 (2013). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal quotation marks and citations omitted), appeal denied, 38 A.3d 823 (Pa. 2012). "The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (internal quotation marks and citations omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3).
In addition, when reviewing a claim of ineffective assistance of counsel we apply the following test, first articulated by our Supreme Court in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal quotation marks and citations omitted). "Failure to establish any prong of the test will defeat an ineffectiveness claim." Commonwealth v. Birdsong, 24 A.3d 319, 330 (Pa. 2011).
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him.
. . .
[T]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different.
In this case, the PCRA court dismissed Appellant's PCRA petition without conducting a hearing.
[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see also Pa.R.Crim.P. 907.
In this appeal, Appellant alleges his parole-violation counsel was ineffective for failing to call certain witnesses, who would have testified that he was not homeless and that he did not suffer from mental illness. We have described a PCRA petitioner's burden in advancing this type of claim as follows.
A defense counsel's failure to call a particular witness to testify does not constitute ineffectiveness per se. Commonwealth v. Cox, 603 Pa. 223, 267, 983 A.2d 666, 693 (2009) (citation omitted). "In establishing whether defense counsel was ineffective for failing to call witnesses, a defendant must prove the witnesses existed, the witnesses were ready and willing to testify, and the absence of the witnesses'Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. Super. 2011). Further, a petitioner must provide proof of the availability of the witness, his or her willingness to testify and the substance of the proposed testimony by including an appropriate affidavit or other proof with the PCRA petition. Commonwealth v. McLaurin, 45 A.3d 1131, 1137 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).
testimony prejudiced petitioner and denied him a fair trial." Id. at 268, 983 A.2d at 693.
Instantly, we perceive no error in the PCRA court's dismissal of Appellant's PCRA petition. In its February 21, 2013 opinion, the PCRA court has accurately set forth the legal standards relevant to Appellant's claims on appeal. Further the trial court has aptly applied those standards to the facts of this case, thereby demonstrating Appellant's contentions to be without merit. After our careful independent review of the whole record, we conclude the trial court has thoroughly and correctly analyzed the law of this Commonwealth as it relates to Appellant's ineffectiveness of counsel issues, and wholly refuted Appellant's arguments. In particular, we agree that the proposed testimony of the witnesses Appellant faults counsel for not calling is irrelevant to the issue of whether Appellant violated his parole. Accordingly, we adopt the February 21, 2013 opinion of the Honorable Glenn B. Bronson as our own for purposes of this appeal.
Order affirmed. Judgment Entered. _____________
Joseph D. Seletyn, Esq.
Prothonotary
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v.
QUENTIN ALLEN WILSON
CP-51-CR-0000239-2008
OPINION
BRONSON,J.
I. PROCEDURAL BACKGROUND
On July 17, 2008, following a non-jury trial before this Court, defendant Quentin Allen Wilson was convicted of indecent assault (18 Pa.C.S. § 3126) and indecent exposure (18 Pa.CS. § 3127). The Court then imposed a sentence of six to twenty-three months incarceration followed by three years reporting probation on the charge of indecent assault and a consecutive sentence of two years reporting probation on the charge of indecent exposure. The Court released defendant on immediate parole. On June 12, 2009, and July 2, 2009, the Court held a bifurcated Daisy Kates hearing, after which the Court found that defendant had committed a direct violation of parole and probation. The Court teiminated defendant's parole, revoked his probation, and sentenced defendant to an aggregate sentence of two-and-one-half to five years incarceration. Defendant submitted a pro se Motion for Reconsideration of VOP Sentence, which the Court denied on July 20, 2009. Defense counsel then filed a second Motion for Reconsideration of VOP Sentence on defendant's behalf, which the Court denied on July 27, 2009. Defendant was represented at trial and sentencing by Jordan Barnett, Esquire, and at his violation of probation hearings by Rosemary Zeccardi, Esquire.
Defendant was acquitted of rape (18 Pa.CS. § 3121(a)(3)), sexual assault (18 Pa.C.S. § 3124.1), and simple assault (18 Pa.CS. § 2701). N.T. 7/17/2008 at 104-105.
A Daisy Kates hearing is a revocation hearing held regarding an alleged direct violation of parole or probation where the alleged violation is premised upon conduct that is the subject of an open criminal case, and the revocation hearing is held prior to defendant's trial on the substantive criminal charges. This procedure. was first approved by our Supreme Court in Commonwealth v. Kates, 305 A.2A 701 (Pa. 1973)
On July 7, 2010, the Superior Court affirmed defendant's judgment of sentence. Defendant then filed a pro se petition under the Post-Conviction Relief Act ("PCRA") on January 3, 2011. Elayne Bryn, Esquire was appointed to represent defendant on September 8, 2011. On April 23, 2012, Ms. Bryn filed an Amended PCRA Petition ("Amended Petition") and Supporting Memorandum of Law raising the claim that defendant's counsel was ineffective for failing to call two witnesses at defendant's Daisy Kates hearing. On May 4,2012, Ms. Bryn filed a Supplemental Amended Petition ("Supplemental Petition"), to which she attached an affidavit from one of these potential witnesses
On September 21, 2012, after reviewing defendant's PCRA Petition, the Commonwealth's Motion to Dismiss, and supplemental pleadings from both sides, this Court ruled that the claims set forth in defendant's petition were without merit. Pursuant to Pa.R.Crim.P. 907, the Court issued notice of its intent to dismiss the petition without a hearing ("907 Notice"). Defendant did not respond to the Court's 907 Notice. On November 2, 2012, the Court entered an order dismissing defendant's PCRA Petition. This appeal followed.
Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that counsel was ineffective for failing to call two witnesses at defendant's Daisy Kates hearing. Concise Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b) ("Statement of Errors") at ¶¶ 1-2. For the reasons set forth below, defendant's claims are without merit, and the PCRA Court's order dismissing his PCRA Petition should be affirmed.
II. FACTUAL BACKGROUND
The facts of this case are summarized in this Court's original 1925(a) opinion, and are restated in the Superior Court's opinion affirming the judgment of sentence on direct appeal. See Superior Court Opinion, riled 7/7/2010 at pp. 1-2; Trial Court Opinion, filed 11/16/2009, at pp. 2-3.
III. DISCUSSION
An appellate court's review of a PCRA court's grant or denial of relief "is limited to determining whether the court's findings are supported by the record and the court's order is otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996), appeal denied, 701 A.2d 577 (Pa. 1997) (citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will not disturb findings that are supported by the record." Yager, 685 A.2d at 1003 (citing Legg, 669 A.2d at 391).
Here, defendant's claim pertains to the alleged ineffective assistance of counsel at his Daisy Kates hearing. Under Pennsylvania law, counsel is presumed effective and the burden to prove otherwise lies with the petitioner. Commonwealth v. Basemore, 744 A.2d 717, 728 (Pa. 2000) (citing Commonwealth v. Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective assistance of counsel, a petitioner must show that counsel's representation fell below accepted standards of advocacy and that as a result thereof, the petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as requiring proof that: (1) the claim underlying the ineffectiveness claim had arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa, 2009); Commonwealth v. Pierce, 527 A.2d 973, 974-75 (Pa. 1987). To satisfy the third prong of the test, the petitioner must prove that, but for counsel's error, there is a reasonable probability that the outcome of the proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 2006) (citing Strickland, 466 U.S. at 694). If the PCRA court' determines that any one of the three prongs cannot be met, then the court need not hold an evidentiary hearing as such a hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008), appeal denied, 956 A.2d 433(Pa.2008).
Defendant claims that the PCRA Court erred in dismissing, without an evidentiary hearing, his claim that his VOP hearing counsel was ineffective for falling to call two potential defense witnesses, Elizabeth Hogan and Terry Brown, at defendant's Daisy Kates hearing, as "defendant claimed he was not homeless and that at the time of the alleged offenses he lived with his mother and that the witnesses could provide this testimony." Statement of Errors at 1-2. Defendant further claims that these witnesses would have testified that defendant did not have mental health issues. PCRA Petition at ¶ 7.
In order to prevail on a claim that counsel was ineffective in failing to call a witness, the petitioner must plead and prove "that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness' testimony was so prejudicial to have denied [the defendant] a fair trial." Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (quoting Commonwealth v. Wright, 961 A.2d 199, 155 (Pa. 2001)).
Here, defendant cannot demonstrate that the absence of the potential witnesses' testimonyr could have, in any manner, affected the outcome of his hearing. At his Daisy Kates hearing, defendant was found to be in direct violation of his probation for approaching the complainant in his underlying indecent assault case, Christine Pasquarello, and threatening to kill her. N.T. 7/2/2009 at 6-7. The Court found credible the testimony of Ms. Pasquarello, who was homeless and living under a bridge along Interstate 95 when defendant approached her and threatened her three times, in direct violation of the Court's protection order. N.T. 6/12/2009 at 9-17; 7/20/2009 at 6-7. Defendant now claims that, during the time period in which the Court found that he was harassing Ms. Pasquarello, he was not homeless and lived with his mother. PCRA Petition at ¶ 7. He claims that two witnesses, Ms. Hogan and Ms. Brown, would have testified to this, and that they would also have testified that he did not have a mental illness. PCRA Petition at ¶ 7.
These claims are gleaned from defendant's Amended Petition and the affidavit from Ms. Brown that was attached to defendant's Supplemental Petition. Defendant did not provide an affidavit from Ms. Hogan.
Because the proffered testimony of these two witnesses was irrelevant to the issues presented in the Daisy Kates hearing, defendant could not have been prejudiced by bis attorney's decision not to present these witnesses. Even if defendant's VOP hearing counsel had done so, and both women had testified that defendant was not homeless and did not suffer from mental illness, that testimony would not have undercut Ms. Pasquarello's credibility, or supported defendant's version of the facts. Defendant being homeless and/or mentally ill was of no moment with regard to whether or not he threatened Ms. Pasquarello. In fact, had these two witnesses testified that defendant was not homeless or mentally ill, it would only have served to undercut the only two grounds for mitigation that the Court found to be present at defendant's sentencing. N.T. 2/9/2009 at 15-18.
Accordingly, the record establishes that no prejudice resulted from counsel's failure to call Ms. Hogan and Ms. Brown as witnesses at defendant's Daisy Kates hearing. Therefore, the Court properly found that counsel's failure to call these witnesses did not deprive defendant of effective assistance of counsel. See Commonwealth v. Lark, 698 A.2d 43, 49 (Pa 1997) (counsel cannot be ineffective for failing to present a witness who could not have benefited defendant).
IV. CONCLUSION
For the foregoing reasons, the Court's order denying dismissing defendant's PCRA Petition should be affirmed.
BY THE COURT:
_____________
GLENN B. BRONSON, J.