Opinion
J. S20025/17 No. 2439 EDA 2015
06-21-2017
COMMONWEALTH OF PENNSYLVANIA v. ERIC BUNDY, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. CP-51-CR-0000067-2007 BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Eric Bundy appeals from the order of July 17, 2015, issued by the Court of Common Pleas of Philadelphia County that dismissed his PCRA petition without a hearing. After careful review, we affirm.
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
The factual history of this matter as recounted by the PCRA court is as follows:
On April 7, 2006, at approximately 10:45 [p.m.], Jason Bryan (victim/decedent) and his cousin Kevin Robertson drove to the 100 block of N. 60th Street in the City and County of Philadelphia to meet Kevin's girlfriend, Samara Dennis. Robertson double-parked his cousin's silver Cadillac near Samara's house. Samara, who had been dating Robertson for two (2) months, walked over to the car and got into the back seat. After a few minutes Samara exited the car and began to walk into her
house, where her brother and her daughter were waiting for her.
Robertson began to pull away as [appellant] started to run up to the driver's side door while pulling a firearm from his waistband. Robertson saw [appellant] approach in the rearview mirror, pulled out his firearm, and while hanging out of the driver's side window shouted, "I've got something too!" [Appellant] stepped back and gestured with one hand that he was backing away, while sliding the firearm back into his waistband. At the same time as [appellant] backed away from the car, Derrick Edmunds approached the passenger side and began firing into the car. Robertson quickly ducked back into the car and pulled away. [Appellant] began firing at the car as it drove off. Neighbors at the block party quickly fled the area.
Robertson drove approximately eight (8) blocks to 61st and Landsdowne Streets and parked. Robertson noticed that he was shot in the right hand and arm, and felt pain in his head. Bryan was slumped forward in his seat and unresponsive as Robertson called out to him. Robertson pulled Bryan's body back into the seat and noticed two (2) bullet wounds to his head. He called 911. As police arrived and approached the car, the driver's side door was open and the engine was running. Robertson staggered over to the police in a blood soaked shirt and was transported to the hospital for treatment. Bryan was pronounced dead at the scene. He sustained two (2) fatal gunshot wounds to the head.
An investigation of the Cadillac revealed that the rear window had a bullet hole in it, which caused the window to shatter, and there were five (5) bullet holes in the passenger side door. Seven (7) fragments of ballistic evidence were discovered inside the car. It was determined that all of the shots were fired into the vehicle at the scene of the shooting. Eight (8) .45 caliber fired cartridge casings ("FCC") were found on the street at the scene of the
shooting. The casings matched the ballistic evidence extracted from the decedent's body. The FCC's and the bullets were all fired from the same .45 caliber weapon.PCRA court opinion, 6/27/16 at 2-3, quoting trial court opinion, 7/30/09 at 2-4 (citations to notes of testimony and footnote omitted.)
On May 5, 2006, Derrick Edmunds provided a statement to police detailing his involvement in the murder of Jason Bryan and was subsequently arrested. [Appellant] was arrested on May 9, 2006.
A jury convicted appellant of the crimes of third degree murder, attempted murder, conspiracy to commit murder, aggravated assault, conspiracy to commit aggravated assault, possessing an instrument of crime, and violating the Uniform Firearms Act. On January 30, 2009, the trial court sentenced appellant to an aggregate term of 33½ to 87 years' imprisonment. Appellant filed post-sentence motions which the trial court denied on February 11, 2009. Appellant appealed to this court on February 17, 2009. On April 16, 2010, this court affirmed the judgment of sentence. Commonwealth v. Bundy , 998 A.2d 1011 (Pa.Super. 2010) (unpublished memorandum). On December 1, 2010, the Pennsylvania Supreme Court denied allocatur. Commonwealth v. Bundy , 13 A.3d 474 (Pa. 2010).
18 Pa.C.S.A. §§ 2502(c), 901(a), 903(a)(1), 2702, 903(c), 907(a), and 6106(a)(1), respectively.
Derrick Edmunds ("Edmunds"), appellant's co-defendant, was convicted of the same crimes as appellant except that he was convicted of first degree murder, 18 Pa.C.S.A. § 2502(a), rather than third degree murder. Currently, Edmunds has appealed the denial of an amended PCRA petition alleging ineffective assistance of counsel to this court.
On January 3, 2012, appellant filed a pro se PCRA petition. He filed a supplemental pro se petition on January 15, 2013. Lee Mandell, Esq., was appointed as counsel and filed an amended PCRA petition on December 17, 2014. In this amended petition, appellant raised claims of trial counsel's ineffectiveness. Specifically, appellant asserted that his trial counsel was ineffective for the following reasons: 1) failure to conduct an independent pretrial investigation to prepare a meaningful defense for a capital murder trial; 2) failure to independently locate or interview any potential witnesses that were present during the moments leading up to the shooting incident; 3) failure to introduce exculpatory evidence that showed that appellant's physical attributes failed to match the witness's description of the shooter; 4) failure to secure an independent forensic expert to examine the physical evidence what would have shown only one shooter was involved with regard to the serious injury to the driver and the death of the passenger; 5) failure to object during trial and preserve for appeal a challenge regarding the introduction of hearsay testimony that was used to describe appellant as the shooter; 6) failure to timely submit a motion to the trial court that challenged the verdict as against the weight of the evidence; and 7) failure to voluntarily petition for his withdrawal at trial due to his physical, mental, and emotional difficulties. (Amended Post Conviction Relief Act Petition, 12/17/14 at 2-3.)
On February 25, 2015, the Commonwealth moved to dismiss appellant's petition on the basis that he failed to meaningfully develop any claims. On June 5, 2015, the PCRA court issued a notice of intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. On July 17, 2015, the PCRA court dismissed the petition. Appellant filed a notice of appeal to this court.
Before this court, appellant contends that the PCRA court erred when it dismissed the amended PCRA petition without a hearing even though appellant pled and would have been able to prove that he was entitled to relief.
Proper appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson , 90 A.3d 1, 4 (Pa.Super. 2014) (citations omitted). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman , 799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
Where the PCRA court has dismissed a petitioner's petition without an evidentiary hearing, as was the case here, we review the PCRA court's decision for an abuse of discretion. See Commonwealth v. Roney , 79 A.3d 595, 604 (Pa. 2013), cert. denied , 135 S.Ct. 56 (2014) (citation omitted). Moreover,
the 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) (internal citations omitted).
Instantly, all of appellant's claims challenge the effectiveness of counsel. To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that "the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced." Commonwealth v. Charleston , 94 A.3d 1012, 1020 (Pa.Super. 2014), appeal denied , 104 A.3d 523 (Pa. 2014) (citation omitted). "[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant." Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied , 30 A.3d 487 (Pa. 2011) (citation omitted). Additionally, we note that "counsel cannot be held ineffective for failing to pursue a meritless claim[.]" Commonwealth v. Hall , 867 A.2d 619, 632 (Pa.Super. 2005), appeal denied , 895 A.2d 549 (Pa. 2006).
After a thorough review of the record, including the briefs of the parties, the applicable law, and the well-reasoned opinion of the PCRA court, it is our determination that appellant's ineffectiveness claims warrant no relief. The PCRA court comprehensively discussed the ineffectiveness claims briefed by appellant and concluded that they were either meritless, undeveloped, or previously litigated. ( See PCRA court opinion, 6/27/16 at 5-10.) We have reviewed the record in its entirety and have considered the merit of appellant's arguments. Following our careful consideration, we find that the PCRA court's conclusions are clearly free of legal error. Accordingly, we adopt the PCRA court's June 27, 2016 opinion as our own.
With respect to appellant's claim that trial counsel was ineffective because he failed to independently locate and interview any potential witnesses who were reportedly present during the moments leading up to the shooting, this court agrees with the trial court's reasoning that appellant did not provide any information that would indicate that any witness existed, the witness was available, counsel knew of or should have known of the existence of the witness, the witness was willing to testify, and the failure of the witness to testify was so prejudicial to deny appellant a fair trial. See Commonwealth v. Peterkin , 513 A.2d 373, 383 (Pa.Super. 1986. However, the trial court also stated that appellant failed to attach to his petition an affidavit from any possible witnesses. In Commonwealth v. Pander , 100 A.3d 626, 640-642 (Pa.Super. 2014) ( en banc ), this court held that a request for an evidentiary hearing under the PCRA did not require affidavits from witnesses. Rather, this court held that certifications from the pro se petitioner or the petitioner's attorney, if he has one, as to the substance of each witness's testimony would satisfy the PCRA. Notwithstanding the trial court's error, it still adequately disposed of appellant's claim. --------
Based on the foregoing, we affirm the PCRA court's July 17, 2015 order dismissing appellant's petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/21/2017
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