Opinion
J-S10003-17 No. 3816 EDA 2015
03-01-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JACOB MATTHEW CHRISTINE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered December 2, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002002-2007 BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Jacob Matthew Christine, appeals pro se from the order entered on December 2, 2015, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the facts underlying Appellant's conviction as follows:
On February 22nd, 2007, members of the Allentown Police Department were dispatched to the Super 8 Motel, located at 1033 Airport Road, Allentown, Lehigh County, Pennsylvania, for a shooting in progress. There, they came across Cameron Fodero and Jeremy Pahula who indicated that they encountered [Appellant] in the dumpster area, outside of the Super 8 Motel. Mr. Fodero and Mr. Pahula approached [Appellant] and a brief argument ensued. During the course of that questioning and argument, [Appellant] produced an automatic weapon from behind his back and pointed the weapon towards the ground, in the direction of Mr. Fodero and Mr. Pahula, and fired several shots. The ricochets from those shots resulted in a cut
underneath Mr. Fodero's right eye and Mr. Pahula['s] being struck in the center of his chest, both minor gunshot wounds. Mr. Fodero ran away and [Appellant] then ran towards the front of the motel, with Mr. Pahula['s] giving chase. While being chased, [Appellant] continued to fire several more shots at Mr. Pahula. Mr. Pahula eventually caught up with [Appellant] just in front of the lobby area of the Super 8 Motel and a physical struggle ensued.PCRA Court Opinion ("PCO"), 3/21/16, at 6-7 (quoting this fact summary verbatim from the court's December 2, 2015 opinion dismissing Appellant's PCRA petition).
Mr. Pahula broke away. During the course of the physical altercation, Mr. Pahula saw a chain lying on the ground and took that in his possession. On his way back to his room, Mr. Pahula yelled to the night clerk that he had been shot. The night clerk also saw [Appellant] run by.
A short time later, that same clerk saw [Appellant] heading towards the front of the Super 8 Motel, this time having changed his clothes from a sweater to a black muscle shirt. Police units arrived shortly thereafter.
At the direction of the night clerk, [Appellant] was taken into custody by Allentown police. Subsequently, a search warrant was obtained for [Appellant]'s room, Room Number 126. $3,529.00 in US currency was found in the refrigerator, alongside [Appellant]'s identification. Police found a .40 caliber High Point semi-automatic handgun, which was loaded with three hollow point shells in the magazine and one hollow point shell in the chamber, and male clothing in a tote caddy. Additionally, a backpack was found which contained [Appellant]'s Social Security card, a certificate from the Department of Education, [Appellant]'s résumé, and an "owe" sheet. Inside this backpack, police also found 82.5 grams of cocaine and 128 grams of marijuana, variously packaged. Police found several empty glass vials, Inositol (a cutting agent used for the distribution of cocaine), and razors within the room.
It was later determined that [Appellant] did not have a license to carry the firearm.
On November 2, 2007, Appellant, while represented by Nathan Schiesser, Esq., pled nolo contendere to two counts of aggravated assault, one count of carrying a firearm without a license, and two counts of possession of a controlled substance with intent to deliver ("PWID"), pursuant to a negotiated plea agreement. However, prior to sentencing, Appellant successfully withdrew his plea. See Order Granting Motion to Withdrawal Plea of Nolo Contendere, 12/05/07, at 1 (single page). Attorney Schiesser subsequently filed a petition to withdraw as Appellant's counsel, which was granted by the trial court on January 3, 2008.
Appellant obtained new counsel, Michael Parlow, Esq., who entered his appearance on January 23, 2008. On February 15, 2008, Appellant filed an omnibus pre-trial motion, which was dismissed as untimely on February 20, 2008. Appellant subsequently entered a negotiated guilty plea on June 6, 2008, to the same charges listed above. That same day, Appellant was sentenced to consecutive terms of 1-2 years' incarceration for the two aggravated assault offenses, a concurrent term of 18-36 months' incarceration for the firearm offense, a consecutive term of 30-60 months' incarceration for one PWID offense, and a consecutive term of 5 years' probation for the remaining PWID offense. This resulted in an aggregate sentence of 4½-9 years' incarceration, to be followed by 5 years' probation.
Appellant filed a timely, pro se direct appeal. On May 17, 2010, this Court affirmed his judgment of sentence. Commonwealth v. Christine , 4 A.3d 194 (Pa. Super. 2010) (unpublished memorandum). On June 28, 2011, our Supreme Court denied Appellant's petition for allowance of appeal from that decision. Commonwealth v. Christine , 23 A.3d 1054 (Pa. 2011).
For a brief time during Appellant's direct appeal, he was represented by appointed counsel, Albert Nelthropp, Esq. However, Appellant successfully waived his right to appellate counsel, and proceeded pro se for the remainder of his direct appeal. See Order, 3/11/10, at 1 (single page) (permitting Attorney Nelthropp to withdraw in his representation of Appellant, and permitting Appellant to proceed pro se, following a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998)).
Appellant then filed a timely, pro se PCRA petition on February 2, 2012. Michael Wiseman, Esq., was appointed to represent Appellant during the PCRA proceedings. In his pro se petition, Appellant raised, inter alia, several ineffective assistance of counsel ("IAC") claims. A PCRA hearing was conducted on October 12, 2012, at which time Attorney Parlow testified. Following that hearing, on February 12, 2013, Appellant filed a supplement to his PCRA petition, alleging an additional IAC claim pertaining to Attorney Schiesser. A second PCRA hearing was held to address the supplementary claim, at which Attorney Schiesser testified. A third PCRA hearing was conducted on July 10, 2014, at which Appellant and Detective Ralph Romano testified. Ultimately, the PCRA court dismissed Appellant's petition by order and opinion dated December 2, 2015.
It appears from the record that Appellant was briefly appointed standby counsel prior to when Attorney Wiseman entered his appearance.
Detective Romano was the lead investigator in Appellant's case, as well as the affiant who obtained the search warrant.
Appellant filed a pro se notice of appeal on December 8, 2015. New counsel was briefly appointed for his appeal, however, Appellant filed a motion to proceed pro se with this Court. He also filed a pro se, court-ordered Pa.R.A.P. 1925(b) statement in the PCRA court on January 21, 2016. On January 20, 2016, this Court remanded for a Grazier hearing to determine "whether ... Appellant's waiver of counsel is knowing, intelligent and voluntary[.]" Order, 1/20/16, at 1 (single page). Appellant's Grazier hearing was conducted on February 9, 2016, at which time the PCRA court determined that Appellant's choice to proceed without counsel was made knowingly, intelligently, and voluntarily. N.T. Grazier Hearing, 2/9/16, at 6. Also during that hearing, Appellant requested that the PCRA court accept his previously rejected, pro se Rule 1925(b) statement, and the court agreed. Id. at 7. The PCRA court then filed its Rule 1925(a) opinion on March 21, 2016.
The statement had initially been rejected because, at the time of its filing, Appellant was represented by the attorney appointed by the court after Appellant had filed his pro se notice of appeal. --------
Appellant now presents the following questions for our review, restated for clarity, as follows:
I. Was Attorney Schiesser ineffective for failing to file a suppression motion directed at the fruits of the search of Appellant's motel room?Appellant's Brief, at 3.
II. Was Attorney Parlow ineffective during the second plea process, for failing to object to the factual basis of the plea, for coercing Appellant to plead guilty, for misinforming Appellant about his direct appellate rights, and/or for ignoring Appellant's assertions of innocence?
III. Was Attorney Parlow ineffective for failing to challenge the Commonwealth's rescinding of the initial plea agreement after Appellant withdrew his nolo contendere plea?
IV. Was Attorney Schiesser ineffective for failing to file a Pa.R.Crim.P. 600 motion for nominal bail, as Appellant's continued incarceration after the first 180 days of incarceration contributed to coercing him to accept a plea?
V. Was Attorney Parlow ineffective for failing to notify the trial court of a threatening letter Appellant received from a victim, and was Attorney Wiseman ineffective for failing to question Attorney Parlow regarding that matter during the October 12, 2012 PCRA hearing?
VI. Was Attorney Wiseman ineffective for failing to investigate and litigate the issue that the Commonwealth tampered with the notes of testimony from prior hearings, omitting testimony favorable to Appellant's legal interests, or otherwise ineffective for failing to have the omission corrected?
VII. Were Attorneys Schiesser, Parlow, and Wiseman cumulatively ineffective?
Regarding Appellant's seventh claim, wherein he asserts the cumulative ineffectiveness of all prior counsel, we deem that matter waived, as it was not raised in Appellant's Rule 1925(b) statement. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) ("Any issues not raised in a 1925(b) statement will be deemed waived.").
Furthermore, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion(s) of the Honorable Kelly L. Banach, we conclude that the remainder of Appellant's issues merit no relief. The PCRA court's Rule 1925(a) opinion (which incorporates its December 2, 2015 opinion that accompanied the order dismissing Appellant's PCRA petition) comprehensively discusses and properly disposes of the first six questions presented in Appellant's brief. Specifically, we conclude in light of its opinion(s) that the PCRA court's dismissal of Appellant's PCRA petition was "supported by evidence of record and ... free of legal error." Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012). Accordingly, with the exception of the claim we deem waived for appellate review, we affirm the order denying Appellant's PCRA petition on the basis set forth in the PCRA court's opinion(s).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/1/2017
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