Opinion
690 EDA 2023 J-S38039-23
10-23-2023
COMMONWEALTH OF PENNSYLVANIA v. MASON CLARY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered March 3, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003216-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Mason Clary (Clary) appeals pro se from the order of the Court of Common Pleas of Montgomery County (PCRA court) dismissing his petition for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, without a hearing after permitting PCRA counsel to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
On appeal, Clary argues that the PCRA court erred in not finding trial counsel ineffective for (1) failing to request a lesser included offense instruction for conspiracy to commit aggravated assault, and (2) not raising a due process argument against the admission of Global Positioning System (GPS) data obtained from the ankle monitor worn by Clary at the time of offense. After review, we affirm.
I.
A.
We adopted the following summary of the facts on direct review:
On April 6, 2018, the Norristown Police Department responded to a shooting in the area of Spruce and Willow Streets in Norristown, Montgomery County. Officers obtained video footage from several locations around the area of the shooting. Video surveillance from Pub Deli depicted [Clary] and co-[d]efendant [Jamal Wallace] together during the hours leading up to the shooting. ... [Clary] and Wallace were first seen there at approximately 5:03 p[.]m[.] From that time until approximately 8:04 p[.]m[.], video surveillance showed [Clary] and Wallace in and out of [ ] Pub Deli. The video shows them inside [ ] Pub Deli for periods of time, then leaving and returning throughout the late afternoon/early evening. Each time [Clary] was at Pub Deli, he was with Wallace.
During the time they were at Pub Deli, at approximately 6:04 p[.]m[.], Wallace went to a vehicle parked just outside the store and retrieved a firearm from the glovebox. He racked the chamber of the gun and placed the loaded firearm in the waistband of his pants. Wallace then went back inside [ ] Pub Deli with the firearm in the right side of his waistband. His shirt was pulled up above his pants so that a portion of the firearm was visible. [Clary] remained inside [ ] Pub Deli while Wallace was outside retrieving the firearm. When Wallace came back inside [ ] Pub Deli, the firearm was visible in his waistband and [Clary] motioned to Wallace to put his shirt down to cover the firearm. Wallace pulled his shirt down over the waistband of his pants to cover the firearm, and the firearm created a visible bulge on his right side where it was located. There is no evidence that Wallace thereafter relinquished possession of the firearm.
[Clary] and Wallace left [ ] Pub Deli together for the last time at approximately 8:04 p[.]m[.] At that time[,] they went to the home of a minor, C.S., ... and arrived there at 8:13 p[.]m[.] [C.S.]'s home backed up to [Clary]'s home. The three individuals then left C.S.'s house together at 8:16 p[.]m[.], and walked to
the intersection of Spruce and Willow Streets in Norristown, which is located approximately three blocks from C.S.'s home. At this intersection, a pedestrian, later identified as the victim, Kamal Dutton, [ ] walked past the trio. [Dutton] was walking down the street, minding his own business[,] at the time he passed the trio of [Clary], Wallace, and C.S.
For no apparent reason, after [Dutton] walked past the trio, the three individuals turned around and confronted him together. The trio surrounded [Dutton] in a circular manner, each standing a few feet away from [him] and each other. The trio then started to fight with [Dutton], three on one. Wallace pulled out a firearm and pointed it at [Dutton] in full view of his fellow conspirators. As [Dutton] started to run away from the trio, they chased him, together, running east on Spruce Street toward DeKalb Street. As the trio chased [Dutton], Wallace fired multiple shots at him, ultimately striking him in the head. The trio of conspirators turned and quickly ran away together. The shooting occurred at approximately 8:21 p[.]m[.] After the shooting, the three individuals fled the scene together, leaving the victim bleeding on the ground. [Ultimately, the victim survived the attack.]
Officer Kevin Fritchman, of the Norristown Police Department, found [Dutton] with a gunshot wound to the head ... approximately three blocks from the scene of the shooting on Spruce Street. Police located a number of blood droplets [and four 9 mm shell casings] on Spruce Street at the scene of the shooting.
At the time of the shooting, C.S. was a seventeen (17) year[-]old juvenile. Based upon the offense, Norristown police filed charges against him for his role in the conspiracy and assault. Eventually, C.S.'s case was decertified to Juvenile Court and he entered an admission to conspiracy to commit aggravated assault. [C.S.] identified [Clary] and Wallace as the two men he conspired with to assault the victim. He admitted that the trio acted in concert to assault the victim.
[In addition, a]t the time of the shooting, [Clary] wore a GPS monitoring device on his ankle. Based upon data recovered from the GPS device, [Clary] was identified as being present at [ ] Pub Deli with Wallace before the assault and leaving [ ] Pub Deli approximately twenty minutes before the attack and shooting. The GPS data also identified [Clary] near the home of C.S.
immediately before the crime, at the location of the crime, and then tracked back to the area near his and C.S.'s homes after the crime. On April 7, 2019, approximately twenty-four (24) hours after the shooting, [Clary] cut off his GPS monitoring device. The GPS data was corroborated by video surveillance. On April 16, 2018, C.S. identified [Clary] in a photographic lineup as an individual involved in the shooting, stating that he was not the shooter.Commonwealth v. Clary, 2021 WL 212159, unpublished memorandum, at *1-2 (Pa. Super. filed January 21, 2021) (quoting Trial Court Opinion, 10/21/19, at 3-7).
Both Clary and Wallace were charged with several offenses related to the shooting and tried jointly by a jury in March 2019. Before trial, the Commonwealth filed a motion to admit the GPS evidence obtained from Clary's ankle monitor. Clary's trial counsel, in turn, filed a motion in limine to exclude the GPS on several different grounds. Those grounds included that the evidence was impermissible prior bad acts evidence under Pa.R.E. 404(b) since the jury could surmise that Clary was wearing the ankle monitor as a condition of supervision for a prior conviction or bail for another crime that he has been accused of committing. See Motion in Limine, 2/25/19, at 3.
After a hearing on the motion, the trial court held that the probative value of the GPS evidence, along with the evidence about Clary's removal of the ankle monitor, far outweighed any potential for unfair prejudice. See N.T., 3/4/19, at 95-96. Nevertheless, to protect against any unfair prejudice, the trial court instructed the jury to consider the evidence for the limited purpose of establishing identity, opportunity and the progression of the facts in the case. See N.T., 3/5/19, at 105-07, 178.
At trial, Clary faced only one charge: conspiracy to commit aggravated assault. Before the trial court gave its final instructions, Clary's trial counsel colloquied him about whether he wanted the trial court to give a lesser included offense instruction for conspiracy to commit aggravated assault. See N.T., 3/6/19, at 181. Clary confirmed that he had discussed the matter with counsel and that he agreed in not requesting the instruction. Id. During deliberations, the jury asked the trial court for "the definition between simple assault and battery versus aggravated assault." N.T., 3/7/19, at 58. The trial court, however, declined the jury's request and instructed them that they were to apply the instructions already given. Id. at 68. At the end of its deliberations, the jury convicted Clary of conspiracy to commit aggravated assault.
18 Pa.C.S. § 903(a)(1)/2702(a)(1). The Commonwealth charged Clary with conspiracy to commit simple assault in its criminal information but nolle prossed the charge at some point before trial.
The jury convicted Wallace of two counts of aggravated assault and one count each of criminal conspiracy and carrying a firearm without a license. At a separate waiver trial, Wallace was convicted of persons not to possess a firearm. The trial court later sentenced him to an aggregate 32 to 65 years' imprisonment.
Before sentencing, the Commonwealth notified Clary that it was pursuing a mandatory minimum sentence under Pennsylvania's "second strike" rule. Accordingly, the trial court sentenced Clary to a mandatory term of ten to twenty years' imprisonment, following which he filed a post-trial motion. After the trial court denied his post-trial motion, Clary appealed to this Court. Clary's trial counsel continued to represent him on direct appeal, raising four issues challenging (1) the mandatory minimum sentence, (2) the admission of the GPS evidence, (3) the denial of a mistrial motion, and (4) the sufficiency of the evidence. See Clary, supra at *2. Finding none of the issues warranted relief, we affirmed the judgment of sentence on January 21, 2021, and our Supreme Court denied his petition for allowance of appeal later that year. See 269 A.3d 1227 (Pa. Dec. 22, 2021).
42 Pa.C.S. § 9714 (relating to second and subsequent crimes of violence).
B.
On July 26, 2022, Clary filed a pro se PCRA petition raising five claims of trial counsel ineffectiveness. Among these claims, Clary alleged that the trial counsel was ineffective for not requesting a lesser included offense instruction of conspiracy to commit simple assault, which, Clary contended, is that he surmises the jury wanted to convict him of that crime as evidenced by its request for the definition of simple assault. See PCRA Petition, 7/26/22, at 20-21. Clary also alleged that trial counsel was also ineffective on direct appeal for not challenging the GPS evidence on hearsay grounds, an issue of first impression that had not yet been addressed by our Supreme Court at the time of Clary's petition. Id. at 21-22.
Wallace challenged the admission of the GPS evidence on hearsay grounds in his direct appeal. After we held that that such evidence is not hearsay, our Supreme Court granted discretionary appeal to determine whether GPS records constitute statements for hearsay purposes. On February 22, 2023, our Supreme Court held that GPS data does not constitute hearsay under Pa.R.E. 801 because it does not constitute a statement as defined in the rule. See Commonwealth v. Wallace, 289 A.3d 894, 904-08 (Pa. 2023).
PCRA counsel was appointed but did not file an amended petition. Instead, on October 18, 2022, he filed a Turner/Finley no-merit letter, along with a petition to withdraw as counsel. On January 17, 2023, the PCRA court granted counsel leave to withdraw, stating it had independently reviewed the record and agreed with counsel's assessment of Clary's claims. Accordingly, the trial court issued notice of its intent to dismiss the petition without hearing under Pa.R.Crim.P. 907. Clary responded by filing a motion for leave to proceed pro se and file an amended PCRA petition.
In his motion, Clary focused on PCRA counsel's assessment of his claim related to trial counsel not requesting the lesser included offense instruction. Clary contended that trial counsel's failure to request the instruction was unreasonable because it placed the jury in an "all or nothing" position, thus depriving them of convicting on conspiracy to commit simple assault and allow Cary to avoid the mandatory "second strike" sentence. See Motion, 2/16/23, at 4-5.
On March 3, 2023, the PCRA court entered its final order dismissing Clary's petition without a hearing, finding no merit in Clary's ineffectiveness claim related to the lesser included offenses instruction. Clary timely appealed and both he and the PCRA court complied with Pa.R.A.P. 1925. As noted, Clary raises two issues for our review:
I. Did the PCRA court err in finding that PCRA counsel's assessment of trial counsel's advice to waive an instruction on a lesser included offense was not ineffective assistance of counsel?
II. Did the PCRA court err in agreeing with PCRA counsel that the record contained no viable issues warranting post-conviction review, in particular, trial counsel's failure to object to Appellant's prior bad acts?Clary's Brief at 4.
Our standard of review of the denial of PCRA relief is limited to "whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citation omitted). 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 prevailing party at the PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). Further, there is no absolute right to a PCRA hearing, and we review a dismissal "to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing." Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en banc) (citation omitted).
II.
Because both of Clary's claims implicate the effectiveness of counsel, we are guided by the following legal principles. A petitioner will be granted PCRA relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective assistance of counsel 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.A. § 9543(a)(2)(ii). To succeed on an ineffectiveness claim, a petitioner must demonstrate by a preponderance of evidence that "(1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of counsel's action or inaction." Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018) (citation omitted). Counsel is presumed to be effective, and the burden is on the appellant to prove otherwise. See Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).
We need not analyze the prongs of an ineffectiveness claim in any particular order. Rather, we may discuss first any prong that an appellant cannot satisfy under the prevailing law and the applicable facts and circumstances of the case. [C]ounsel cannot be deemed ineffective for failing to raise a meritless claim.Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citations omitted). "A claim has arguable merit where the factual averments, if accurate, could establish cause for relief." Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc) (citation omitted).
Additionally, "a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021). "Where a petitioner alleges multiple layers of ineffectiveness, he is required to plead and prove, by a preponderance of the evidence, each of the three prongs of ineffectiveness relevant to each layer of representation." Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022).
In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue.Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).
A.
Clary first challenges the PCRA court's denial of his ineffectiveness claim relating to trial counsel's failure to seek a lesser included offense instruction of conspiracy to commit simple assault. Clary reasserts that trial counsel had no reasonable basis for not seeking such an instruction, especially when he was facing a mandatory sentence if convicted of conspiracy to commit aggravated assault. Clary adds that his counsel's decision was puzzling based on the theory of defense that his counsel advanced in his summation-that Clary merely wanted to fight the victim and never agreed with anyone to shoot the victim. In Clary's view, the lesser included offense instruction would have fit perfectly with counsel's argument since he was essentially conceding that Clary was guilty of simple assault.
By failing to request the instruction, though, Clary believes that trial counsel prejudiced Clary by leaving the jury with two choices: convicting Clary of conspiracy to commit aggravated assault or a full acquittal. He notes that in such situations, as the United States Supreme Court has recognized, "'[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.'" Beck v. Alabama, 447 U.S. 625, 634 (1980) (quoting Keeble v. U.S., 412 U.S. 205, 212-13 (1973)). Clary believes that is what happened in this case since the jury asked the trial court for the definition of simple assault. As a result, under these circumstances, Clary claims that the PCRA court erred in not granting him relief or, in the alternative, appointing him new PCRA counsel and holding an evidentiary hearing.
While Clary focuses much of his argument on the reasonableness of trial counsel's decision not to seek the lesser included offense instruction, he spends less time discussing the arguable merit of claim-that is, whether trial counsel would have been entitled to the instruction based on the evidence at trial. Indeed, an appellant is not automatically entitled to have the jury instructed on a lesser included offense, as there is no duty on a trial judge to charge a jury upon law which has no applicability to the presented facts. See Commonwealth v. McClain, 587 A.2d 798, 803 (Pa. Super. 1991). Instead, as this Court has explained, "A defendant is entitled to ... an instruction on a lesser included offense only where the evidence in the record would permit the jury to find, rationally, the defendant guilty of the lesser included offense but not the greater offense." Commonwealth v. Ferrari, 593 A.2d 846, 849 (Pa. Super. 1991) (emphasis in original). The mere possibility that the jury may believe part but not all the Commonwealth's evidence is not sufficient to require the trial court to charge the jury on a lesser included offense than that which the prosecution witness testifies has been committed. Id. at 850.
The question then is whether the evidence at trial would have rationally permitted the jury to acquit Clary of conspiracy to commit aggravated assault but convict him of conspiracy to commit simple assault. Addressing this question in its Pa.R.A.P. 1925(a) opinion, the PCRA court concluded that the evidence did not justify a simple assault instruction, that is, that Clary just wanted to fight the victim and had no idea that a firearm would be used.
The evidence showed that Clary was with Wallace for several hours prior to the shooting, leaving and returning to the Pub Deli numerous times. During the time Clary and Wallace were together, video surveillance showed that Wallace went to his car to retrieve a firearm and came back into the Pub Deli with the firearm visible in his waistband. Clary observed the visible firearm on Wallace and motioned to him to put his shirt down to conceal the firearm in his waistband. This is evidence that Clary observed the firearm, had knowledge that Wallace possessed it, and helped Wallace conceal the firearm. When Clary and Wallace left the Pub Deli together to go to C.S.'s house, Wallace was armed with the firearm. When Clary, Wallace and C.S. encountered Dutton on the street, they acted in concert and surrounded Dutton in a circular manner. As they began to fight, Wallace pulled out the firearm in full view of his fellow conspirators and pointed it at Dutton's head. As Dutton attempted to flee, Clary proceeded together with Wallace and C.S. to chase Dutton. At no time did Wallace relinquish possession of the firearm. As the trio chased
Dutton together, Wallace fired multiple shots at Dutton, ultimately striking him in the head. The trio of conspirators turned and quickly ran away together, fleeing the scene and leaving Dutton bleeding on the ground. None of the conspirators tried to render aid to Dutton after Wallace shot him.PCRA Court Opinion, 5/1/23, at 8-9.
We agree with the PCRA court's finding that the evidence at trial did not rationally support giving an instruction on the lesser included offense of simple assault. Indeed, when Clary raised a similar argument on direct appeal in his sufficiency challenge, we concluded that the record evidence showed that "Clary's and Wallace's interactions and behavior in the hours prior to, during, and after the assault-especially with regard to obtaining and concealing the illegal firearm-prove, circumstantially, that the men shared a common understanding that a shooting would be committed, which, in fact, it was." Clary, supra at * 10.
Again, a defendant is not entitled to a simple assault instruction just because he is charged with aggravated assault, as such an instruction is appropriate only where it is rationally supported by some trial evidence. Because that evidence was not adduced in this case, Clary's claim lacks arguable merit since trial counsel cannot be ineffective for not seeking an instruction that was not supported by the evidence. See Commonwealth v. Verticelli, 2023 WL 4760743, unpublished memorandum, at *2-3 (Pa. Super. filed July 26, 2023) (holding trial court did not err in refusing to give simple assault instruction for defendant charged with aggravated assault where defendant attacked victim with a hammer and victim suffered permanent scarring, light sensitivity, headaches and hearing loss); Commonwealth v. Bevans, 2021 WL 3281374, unpublished memorandum, at *2-3 (Pa. Super. 2021) (trial counsel not ineffective for failing to request jury instruction for simple assault where defendant attempted to shoot a firearm while it was pointed at a police officer); Commonwealth v. Williams, 2021 WL 4191954, unpublished memorandum, at *2-3 (Pa. Super. 2021) (finding no abuse of discretion in trial court denying request for simple assault instruction where no rational jury could conclude that the injuries caused by the defendant constituted bodily injury and not serious bodily injury because defendant beat the victim until he was unconscious and dropped him headfirst on concrete). See also Commonwealth v. Sirianni, 428 A.2d 629 (Pa. Super. 1981) (trial court did not err in refusing to give simple assault instruction where there was no evidence in the record from which a jury could reasonably conclude that defendant intended to cause bodily injury but not serious bodily injury where defendant used a firearm at point-blank range against the victim).
Pursuant to the Pennsylvania Rules of Appellate Procedure, we may cite non-precedential memorandum decisions of this Court that were filed after May 1, 2019, for their "persuasive value." Pa.R.A.P. 126(b)(1)-(2).
Assuming Clary's claim had arguable merit, we would still find it meritless because, as Clary concedes and reiterates in his brief, trial counsel sought a full acquittal at trial. "The goal of seeking complete acquittal ... does not constitute ineffective assistance of counsel." Commonwealth v. Harrison, 663 A.2d 238, 241 (Pa. Super. 1995). As a result, such strategy does not rise to the level of ineffective assistance unless "'in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.'" Id. (quoting Commonwealth v. Garcia, 535 A.2d 1186, 1188 (Pa. Super. 1988)). Here, we cannot conclude that counsel's decision to seek full acquittal was unreasonable where, as we have already explained, there was no evidence for a rational jury to find that Clary committed or agreed to commit only simple assault when the evidence showed he knew Wallace had a firearm and continued to chase down the victim after Wallace pointed the firearm at the victim's head.
Accordingly, for all these reasons, we find no error in the PCRA court's finding that trial counsel was not ineffective for failing to request the trial court to instruct the jury on simple assault.
B.
Clary next argues that the PCRA court erred in finding trial counsel not ineffective in how he litigated the admission of the GPS evidence. While conceding that trial counsel objected to the admission of the evidence at trial, Clary nonetheless asserts that trial counsel was ineffective for failing to do so on due process grounds since the admission of the GPS data from his ankle monitor was tantamount to him appearing in prison garb.
The Commonwealth, however, counters that this issue is waived because this is the first time that Clary has raised this issue. We agree. As discussed, Clary did not raise this issue in his PCRA petition since his only ineffectiveness claim related to the GPS data focused on trial counsel's failure to challenge the evidence on hearsay grounds. Therefore, it is waived. See Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) ("Any claim not raised in the PCRA petition is waived and not cognizable on appeal."); Pa.R.A.P. Rule 302 (stating "issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
We would note that Clary also did not raise the claim in his response to the PCRA court's notice of intent to dismiss without hearing under Rule 907.
Even if not waived, though, no relief would be due. Although Clary frames his claim as being based on due process grounds, he is essentially asserting the same underlying argument that his trial counsel raised on direct appeal-that the admission of the GPS data resulted in unfair prejudice because the jury could infer that he committed past crimes because he was wearing an ankle monitor at the time of the shooting. See Clary, supra at *5. In rejecting this argument, this Court explained why the trial court did not abuse its discretion in admitting the evidence.
The GPS evidence, which demonstrated that Clary had been with Wallace for hours prior to the shooting, pursued Dutton after Wallace pulled a gun on him, and fled with Wallace after the shooting, was not admitted to demonstrate his bad character or propensity to commit crimes. The evidence was properly admitted to prove, circumstantially, that a tacit agreement existed between
the defendants-in other words, that Clary was not an innocent bystander at the wrong place at the wrong time when Wallace shot Dutton. See N.T. Pretrial Motions Hearing, 3/4/19, at 66 (Commonwealth sought to admit GPS evidence "as identify in proving scheme"[-otherwise fairly categorized as a lack of mistake or accident-] where evidence shows co-defendants traveling together before, during, and after shooting). The danger of unfair prejudice against Clary did not outweigh the probative value of the GPS evidence. See Commonwealth v. Tedford, 567 A.2d 610 (Pa. 1989) (affirming admissibility of evidence that defendant was enrolled in prison work release program and was granted furlough at time victim was raped and murdered, to establish opportunity and intent).Clary, supra at *7.
Accordingly, aside from being waived, Clary's second issue lacks arguable merit, as he has failed to identify or cite any grounds or authority that trial counsel failed to raise in the trial court that would have resulted in the GPS evidence being excluded.
Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.