Opinion
J-S27044-18 No. 3571 EDA 2017
10-19-2018
COMMONWEALTH OF PENNSYLVANIA v. CHARLES FREEMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 5, 2017
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004824-2013 BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J. MEMORANDUM BY DUBOW, J.:
Appellant, Charles Freeman, appeals from the October 5, 2017 Order, entered in the Montgomery County Court of Common Pleas, dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9545. After careful review, we affirm.
We summarize the facts and procedural history as follows. On May 5, 2013, Appellant, Rasheed Teel, Ander Collier, and Omar Miller, devised a plan to rob Kareem Borowy (the "Victim"). Appellant drove the group to the Victim's house in Pottstown and waited in the car. Teel and the other men, armed with a .45 caliber Glock pistol, entered the residence and demanded the Victim turn over a large quantity of marijuana and $3,000 in cash. The Victim told the robbers that he kept his money in a "stash house" at a different location. The men took the Victim outside and forced him into the getaway car driven by Appellant. Appellant drove away from the Victim's house, presumably intending to travel to the Victim's stash house. When Appellant slowed the car down on a rural roadway, the Victim escaped. Collier chased after the Victim and shot him twice. When he returned to the vehicle, Collier told the others that he saw the Victim fall to the ground, and instructed Appellant to drive away. The Victim died from his gunshot wound.
In response to an anonymous tip, Montgomery County detectives interviewed Teel on May 9, 2013. Teel ultimately admitted that he was present during the crimes, and he identified Collier as the gunman and Appellant as the driver of the getaway car. Teel pleaded guilty to third-degree murder, and agreed to testify for the Commonwealth against his co-conspirators.
Police arrested Appellant on May 20, 2013, and charged him with Homicide, Kidnapping, Robbery, Persons Not to Possess a Firearm, Receiving Stolen Property, False Imprisonment, and Conspiracy to commit each of those offenses.
18 Pa.C.S. §§ 2502, 2901(a)(3), 3701(a)(1)(i), 6105, 3925, 2903, and 903(b), respectively.
Appellant, Collier, and Miller proceeded to a joint trial on April 15, 2014. The Commonwealth presented the testimony of numerous witnesses, including Teel.
On April 21, 2014, following a five-day trial, the jury convicted Appellant of Second-Degree Murder, Robbery, Kidnapping, Conspiracy to commit Kidnapping, and Conspiracy to commit Robbery. On June 24, 2014, the trial court sentenced Appellant to life imprisonment.
Appellant timely appealed and this Court affirmed his Judgment of Sentence on December 2, 2015. Commonwealth v. Freeman , 128 A.3d 1231 (Pa. Super. 2015). He did not seek review with the Pennsylvania Supreme Court
On July 7, 2016, Appellant filed a timely pro se PCRA Petition raising seven issues challenging trial and appellate counsels' stewardship. He also raised an issue alleging that the Commonwealth violated Brady v. Maryland , 373 U.S. 83 (1963), by not notifying him that Teel had sustained a serious brain injury before Appellant's trial which rendered Teel incompetent to testify. On July 28, 2016, the PCRA court appointed Gregory P. DiPippo, Esquire, to represent Appellant.
On October 12, 2016, Attorney DiPippo sent Appellant a "no merit" letter pursuant to Commonwealth v. Turner , 544 A.2d 213 (Pa. 1988), Commonwealth v. Finley , 550 A.2d 213 (Pa Super. 1988) (en banc), and their progeny. Appellant filed a Response to counsel's "no merit" letter on November 3, 2016.
On January 11, 2017, Attorney DiPippo filed a Petition to Withdraw as Counsel.
On January 20, 2017, after reviewing the eight issues Appellant raised in his pro se PCRA Petition, the court granted Attorney DiPippo's Petition to Withdraw as Counsel. The court concluded that, although Appellant's first six issues had no merit, Appellant was entitled to a court-appointed attorney to investigate the factual questions raised in his seventh and eighth issues. Accordingly, the PCRA court appointed Patrick J. McMenamin, Esquire, to represent Appellant.
Appellant's seventh issue challenged trial counsel's failure to investigate Teel's competence to testify, and his eight issue asserted his Brady claim.
On July 18, 2017, counsel filed an Amended PCRA Petition re-raising Appellant's seventh and eighth issues only. The Commonwealth filed an Answer to the Amended Petition on August 17, 2017.
On August 29, 2017, the PCRA court issued a Notice of Intent to Dismiss Appellant's PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not file a Response to the PCRA court's Rule 907 Notice.
On October 5, 2017, the PCRA court dismissed Appellant's Petition. Appellant filed a timely appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following three issues on appeal:
1. Did the lower court err in its determination, without a hearing, that trial counsel provided to Appellant at the time of trial effective assistance of counsel despite trial counsel's alleged failure to investigate and establish that prosecution witness Rasheed Teel had, prior to his testimony, suffered a gunshot wound to the head and that the prior injury rendered the witness unable to accurately recall and testify with respect to the offense at trial?
2. Did the lower court err in its determination, without a hearing, that the Commonwealth did not commit a Brady violation with respect to the issue of Rasheed Teel's gunshot wound to the head, on the basis that the knowledge of Teel's prior injury was
equally available to the defense, thus rendering the claim meritless?Appellant's Brief at v (reordered for ease of disposition). Standard/Scope of Review
3. Did the lower court err in denying Appellant an evidentiary hearing pursuant to the [PCRA] inasmuch as Appellant had issues meritorious of review that could only be properly considered following an evidentiary hearing?
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court's findings and whether its order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if the record supports them. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012).
To be eligible for relief pursuant to the PCRA, Appellant must establish, inter alia, that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation; ineffective assistance of counsel; an unlawfully induced plea; improper obstruction by governmental officials; or in a case where exculpatory evidence has been discovered; an illegal sentence has been imposed; or the tribunal conducting the proceeding lacked jurisdiction. See 42 Pa.C.S. § 9543(a)(2)(i)-(vii). Appellant must also establish that the issues raised in the PCRA petition have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
An allegation of error "is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b). See , e.g., Commonwealth v. Roney , 79 A.3d 595, 609 (Pa. 2013) (concluding that, where a petitioner failed to raise Brady claims at trial and/or on direct appeal, they are waived). Ineffective Assistance of Counsel
In his first issue, Appellant claims his trial counsel was ineffective for failing to investigate whether Rasheed Teel's head injury rendered him incompetent to testify at trial. Appellant's Brief at 16. In particular, Appellant argues that there is a reasonable probability that the outcome of his trial would have been different had counsel discovered that Teel had suffered a gunshot wound resulting in a brain injury. Id. at 18. We disagree.
The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010). "[T]he burden of demonstrating ineffectiveness rests on [A]ppellant." Id. To satisfy this burden, Appellant must plead and prove by a preponderance of the evidence that: "(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different." Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in rejection of the appellant's ineffective assistance of counsel claim. Commonwealth v. Jones , 811 A.2d 994, 1002 (Pa. 2002).
The Honorable Wendy Demchick-Alloy, who presided over all of the proceedings in this case, has authored a comprehensive, thorough, and well-reasoned opinion, citing to the record and relevant case law in addressing Appellant's challenge to his counsel's representation. After a careful review of the parties' arguments and the record, we adopt the PCRA court's opinion as our own and conclude that this issue warrants no relief. See PCRA Court Opinion, dated 12/17/17, at 16-22 (concluding that Appellant's ineffectiveness claim failed because, due to the overwhelming evidence against him, he could not prove the prejudice prong of the ineffectiveness test). Brady Violation
In his second issue, Appellant claims that the Commonwealth violated Brady v. Maryland , 373 U.S. 83 (1963), when it did not disclose to the defense the allegedly material fact that Teel had previously sustained a gunshot wound to the head. Appellant's Brief at 21. Appellant acknowledges that he had heard "a rumor" that Teel had been shot, but argues that this did not obviate the Commonwealth's responsibility to disclose it to his counsel. Id. at 21-23.
Brady provides that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. See also Pa.R.Crim.P. 573(B)(1)(a) (pertaining to the mandatory disclosure of evidence favorable to the accused which is material to guilt or to punishment of the accused, and which is within the possession or control of the prosecutor).
Notably, where a defendant could have raised a Brady claim at trial or on direct appeal, but fails to do so, he waives this claim. See , e.g., Roney , 79 A.3d at 609.
Appellant has acknowledged in his Brief to this Court that he was, at a minimum, aware of a rumor that Teel had sustained a gunshot wound to the head. He also averred in his Amended PCRA Petition that, prior to trial, he and his counsel discussed Teel's gunshot wound. See Amended PCRA Petition, 7/19/17, at ¶¶ 17, 21. However, Appellant raised this Brady claim for the first time in his PCRA Petition. Pro Se PCRA Petition, 7/7/16, at 5. We, thus, conclude that Appellant has waived this issue by failing to raise it "before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b). Dismissal Without an Evidentiary Hearing
Even if Appellant had not waived his issue, it would fail. See Commonwealth v. Simpson , 66 A.3d 253, 265 (Pa. 2013) (concluding that the petitioner's Brady claim pertaining to the victim's criminal history lacked merit because, inter alia, the petitioner was aware of it).
In his final issue, Appellant claims that the PCRA court erred in dismissing his Amended Petition without a hearing. Appellant's Brief at 12-15. We disagree.
There is no absolute right to an evidentiary hearing, and a PCRA court has discretion to deny a PCRA Petition without a hearing "if the PCRA court determines that the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence." Commonwealth v. Hart , 911 A.2d 939, 941 (Pa Super. 2006) (citation omitted). When the PCRA court denies a petition without an evidentiary hearing, we "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. Khalifah , 852 A.2d 1238, 1240 (Pa. Super. 2004) (citing Commonwealth v. Hardcastle , 701 A.2d 541, 542-43 (Pa. 1997)).
As discussed supra , the PCRA court properly concluded that Appellant's ineffective assistance of counsel claim lacked merit and we conclude that Appellant has waived his Brady claim. Therefore, since Appellant's claims were "patently frivolous and [ ] without a trace of support in either the record or from other evidence[,]" we further conclude that the PCRA court did not err in denying relief without conducting an evidentiary hearing.
Order affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/19/18
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