Opinion
J-S74029-16 No. 2344 EDA 2015
01-27-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL L. BUDD 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 at No(s): CP-51-CR-1302160-2006 BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E. MEMORANDUM BY OTT, J.:
Former Justice specially assigned to the Superior Court.
Michael L. Budd appeals from the order entered in the Philadelphia County Court of Common Pleas, dated July 17, 2015, dismissing his first petition filed under the Post-Conviction Relief Act ("PCRA"). Budd seeks relief from the judgment of sentence imposed on November 20, 2007, following his convictions for voluntary manslaughter (provocation from other), possessing an instrument of crime ("PIC"), and firearms not to be carried without a license ("VUFA"). On appeal, Budd claims the PCRA court erred by failing to reinstate his right to file an appeal nunc pro tunc from his judgment of sentence due to ineffective assistance of counsel. Based on the following, we affirm.
The facts underlying Budd's conviction are well known to the parties, and were recounted in detail by this Court in the memorandum decision affirming Budd's judgment of sentence on direct appeal. To summarize, on August 22, 2006, Budd engaged in a verbal argument with the victim and the victim's cousin. A chase ensued, in which the victim and the cousin pursued Budd. Budd then pulled out a revolver and fired three times, striking the victim once in the head. Budd fled on his bicycle and the victim died as a result of the gunshot.
See Commonwealth v. Budd , 32 A.3d 846 (Pa. Super. 2011) (unpublished memorandum at 1-2).
On October 2, 2007, at the conclusion of a two-day bench trial, the court convicted Budd of the above-stated crimes. On November 20, 2007, the court sentenced Budd as follows: (1) a term of nine to 18 years' incarceration for the voluntary manslaughter conviction; (2) a consecutive term of one to two years' imprisonment for the PIC offense; and (3) a consecutive term of two-and-a-half to five years' incarceration for the VUFA crime. Budd filed a post-sentence motion, which was denied by operation of law on March 24, 2008.
The judge acquitted Budd of second- and third-degree murder.
The aggregate sentence amounted to a term of 12½ to 25 years' imprisonment.
On August 10, 2008, Budd filed a pro se PCRA petition. Counsel was appointed, who then filed an amended petition on June 30, 2009. In the amended petition, counsel requested that Budd's direct appeal rights be reinstated nunc pro tunc. On January 15, 2010, the court granted Budd relief and reinstated his appellate rights from the denial of post-sentence motions.
On direct appeal, Budd challenged the discretionary aspects of his sentence. On August 30, 2011, a panel of this Court affirmed the judgment of sentence. See Budd , supra. Budd did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
Rather, on August 27, 2012, Budd filed a pro se PCRA petition, claiming counsel was ineffective. New counsel was appointed, and filed an amended PCRA petition on May 2, 2014. On July 17, 2015, after filing a Pa.R.Crim.P. 907 notice, the PCRA court dismissed Budd's petition, finding the issues raised were without merit. This appeal followed.
He also filed a pro se amended petition and second amended pro se petition on September 24, 2012, and April 22, 2013, respectively.
On August 4, 2015, the PCRA court ordered Budd to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Budd filed a concise statement on August 11, 2015. The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 29, 2016.
In his sole issue on appeal, Budd claims the PCRA court "erred in not reinstating [his] right to file an appeal nunc pro tunc from the judgment of sentence when [Budd's trial] counsel was ineffective in representing [him] on appeal?" Budd's Brief at 2. Specifically, he claims appellate counsel was ineffective for waiving a sufficiency of evidence claim with regard to his voluntary manslaughter conviction on direct appeal because the Commonwealth failed to disprove that he acted in self-defense or that his use of deadly force was justified. Id. at 6.
With respect to Budd's claim that the court erred in failing to reinstate his right to file an appeal nunc pro tunc, we are guided by the following: "[A]n accused who is deprived entirely of his right of direct appeal by counsel's failure to perfect an appeal is per se without the effective assistance of counsel, and is entitled to reinstatement of his direct appellate rights." Commonwealth v. Grosella , 902 A.2d 1290, 1293 (Pa. Super. 2006), quoting Commonwealth v . Johnson , 889 A.2d 620, 622 (Pa. Super. 2005). However, "the reinstatement of direct appeal rights is not the proper remedy when appellate counsel perfected a direct appeal but simply failed to raise certain claims." Grosella , 902 A.2d at 1293. Moreover,
It merits mention:
[T]here have been only three circumstances under which this Court [has] determined that counsel's conduct constituted a constructive denial of counsel warranting a presumption of prejudice: (1) where counsel failed to file a requested direct appeal; (2) where counsel failed to file a statement of matters complained of on appeal; and (3) where counsel failed to file a requested petition for allowance of appeal, thereby depriving the client of the right to seek discretionary review.Commonwealth v. Reed , 971 A.2d 1216, 1225 (Pa. 2009) (internal citations omitted).
[w]here a petitioner was not entirely denied his right to a direct appeal and only some of the issues the petitioner wished to pursue were waived, the reinstatement of the petitioner's direct appeal rights is not a proper remedy. In such circumstances, the [petitioner] must proceed under the auspices of the PCRA, and the PCRA court should apply the traditional three-prong test for determining whether appellate counsel was ineffective.Id. at 1293-1294 (internal citations and parentheticals omitted).
Indeed, counsel filed and perfected a direct appeal on Budd's behalf in 2010, raising a discretionary aspect of sentencing claim. However, that issue is not what Budd now seeks to pursue. In accordance with Grosella , the reinstatement of his direct appeal rights nunc pro tunc is not a proper remedy. Accordingly, we will now address Budd's underlying argument to determine whether appellate counsel was ineffective.
As indicated above, Budd claims appellate counsel was ineffective for waiving a sufficiency of evidence claim with regard to his voluntary manslaughter conviction. Budd's Brief at 6. He states:
There was no reason for appellate defense counsel to waive the issue of []sufficiency of the evidence as to voluntary manslaughter because if this issue would have been successful[,] the judgment of sentence would have been vacated [and] the charge against [Budd] dismissed as to the voluntary manslaughter and [PIC] offenses.Id. Moreover, Budd alleges:
In this case the victim and his cousin were the aggressors in that they chased [Budd] who was riding a bicycle away from the incident w[h]ere the argument started in an attempt to defuse the situation. This did not stop the two men who chased after [Budd] as he was attempting to flee. Then the cousin of the victim yelled to the victim ["] shoot [t]he MFer["] and both continued to yell at [Budd,] it was only upon hearing this that [Budd] used deadly force in an attempt to defend himself from being shot and killed. Also there was no evidence that showed [Budd] knew he could escape from the victim and his cousin with complete safety by retreating. In situation he was in[, Budd] could not have outrun a bullet.Id. at 7-8.
...
In this particular case the Commonwealth did not prove beyond a reasonable doubt that [Budd] knew that he could retreat in complete safety because the words of the victim's cousin said shoot and the evidence shows that the parties were close enough to each other to shoot and kill. The evidence is clear that [Budd] was going to be shot at, if not shot and killed or be seriously injured, if he himself did not take action[,] and flight or retreat would not have protected him[.]
Our standard and scope of review for the denial of a PCRA petition is well-settled:
[A]n appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error. The 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 prevailing party at the trial level.Commonwealth v. Charleston , 94 A.3d 1012, 1018-1019 (Pa. Super. 2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014). Moreover,
[i]n evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. Commonwealth v. Rollins , 558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999). To overcome this presumption, Appellant must establish three factors. First, that the underlying claim has arguable merit. See Commonwealth v. Travaglia , 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995). Second, that counsel had no reasonable basis for his action or inaction. Id. In determining whether counsel's action was reasonable, we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis. See Rollins , 738 A.2d at 441; Commonwealth v. (Charles) Pierce , 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally, "Appellant must establish that he has been prejudiced by counsel's ineffectiveness; in order to meet this burden, he must show that 'but for the act or omission in question, the outcome of the proceedings would have been different.'" See Rollins , 738 A.2d at 441 (quoting Travaglia , 661 A.2d at 357). A claim of ineffectiveness may be denied by a showing that the petitioner's evidence fails to meet any of these prongs. Commonwealth v. (Michael) Pierce , 567 Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v. Basemore , 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998) ("If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone
and the court need not first determine whether the first and second prongs have been met."). In the context of a PCRA proceeding, Appellant must establish that the ineffective assistance of counsel was of the type "which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt [or] innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). See also (Michael) Pierce , 786 A.2d at 221-22; Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999).Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007).
Additionally, because Budd's underlying claim concerns a sufficiency argument, we note "[t]he standard we apply in reviewing the sufficiency of the evidence is whether viewing all of the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013). "Any doubts concerning an appellant's guilt [are] to be resolved by the trier of fact unless the evidence was so weak and inconclusive that no probability of fact could be drawn therefrom." Commonwealth v. West , 937 A.2d 516, 523 (Pa. Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008). Lastly, "the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Perez , 931 A.2d 703, 707 (Pa. Super. 2007).
Budd was convicted of voluntary manslaughter, which is defined, in relevant part, as follows:
(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
...
18 Pa.C.S. § 2503(a)(2).(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Budd claims counsel failed to raise a defense of self-defense with regard to the crime. We note:
[A] claim of self-defense (or justification, to use the term employed in the Crimes Code) requires evidence establishing three elements: "(a) [that the defendant] reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and (c) that the [defendant] did not violate any duty to retreat." Commonwealth v. Samuel , 527 Pa. 298, 590 A.2d 1245, 1247-48 (Pa. 1991). See also Commonwealth v. Harris , 550 Pa. 92, 703 A.2d 441, 449 (Pa. 1997); 18 Pa.C.S. § 505. Although the defendant has no burden to prove self-defense ... before the defense is properly in issue, "there must be some evidence, from whatever source, to justify such a finding." Once the question is properly raised, "the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense." Commonwealth v. Black , 474 Pa. 47, 376 A.2d 627, 630 (Pa. 1977). The Commonwealth sustains that burden of negation "if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid the danger." Commonwealth v. Burns , 490 Pa. 352, 416 A.2d 506, 507 (Pa. 1980).Commonwealth v. Mouzon , 53 A.3d 738, 740-741 (Pa. 2012).
Here, the PCRA court found the following:
[A]t approximately 12:45 in the afternoon of August 22, 2006[, Budd] was riding a bicycle on N. 25th Street in Philadelphia. He engaged in an argument with the decedent, Rafael Glee, who was accompanied by his cousin EJay. A chase ensued, in which the decedent and his cousin chased [Budd]. Across from a church where worshipers were arriving for a luncheon, near the intersection of 25th Street and Cecil B. Moore Avenue, EJay yelled, "Get him. Get him. Shoot the motherfu**er. Give me your gun." Shortly after that, [Budd] who was a significant distance away, got off his bike, and threw it down. As Rafael Glee and EJay were still yelling, [Budd] pulled out a revolver and fired three times. One shot struck the rear of a vehicle; one struck a light pole; and one [struck] the decedent in the head. [Budd] fled on his bicycle. The victim died as a result of that gunshot. Subsequently, a fully loaded gun was found in the victim's waist. Throughout the entire encounter, neither the victim nor EJay ever brandished the weapon.PCRA Court Opinion, 2/29/2019, at 5-6.
The defense in this case was self-defense. Contrary to [Budd]'s claim, however, this Court found as fact that the victim never drew nor fired his weapon, nor did the victim threaten to do so. Although the decedent was the initial aggressor, [Budd] was a safe distance away when he pulled out his gun and fired three times at the decedent. Although [Budd] may have subjectively believed that he needed to act in self-defense, that subjective belief was unreasonable. Accordingly sufficient evidence was presented to justify the verdict. As a matter of law, appellate counsel cannot be ineffective for failing to assert a baseless claim. Commonwealth v. Sneed , 45 A.3d[] 1096, 1115 (Pa. 2012).
After reviewing the record and viewing the evidence in the light most favorable to the Commonwealth, we conclude Budd's challenge to the sufficiency of the evidence lacks merit. The record supports the court's conclusion that Budd's subjective belief, in which it was necessary to use deadly force, was not reasonable because neither the victim nor the cousin brandished a weapon during the encounter. Of importance, Budd was able to escape on a bike and was a considerable distance away from the two men who were on foot when Budd fired several shots. Therefore, Budd's sufficiency claim would fail. Accordingly, we conclude appellate counsel cannot be considered ineffective for failing to present a meritless claim. See Commonwealth v. Koehler , 36 A.3d 121, 144 (Pa. 2012).
Furthermore, we note Budd's claim fails to provide any argument concerning the reasonable trial strategy prong of the ineffective assistance of counsel test. See Washington , supra. As such, we could have denied Budd relief on that basis alone. Id.
In conclusion, the PCRA court did not err in denying Budd's petition and no relief is warranted.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017