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Commonwealth v. Harvey

SUPERIOR COURT OF PENNSYLVANIA
Sep 22, 2016
No. J-S51017-16 (Pa. Super. Ct. Sep. 22, 2016)

Opinion

J-S51017-16 No. 3440 EDA 2013

09-22-2016

COMMONWEALTH OF PENNSYLVANIA Appellee v. SEAN HARVEY Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order November 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1300783-2006 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:

Retired Senior Judge assigned to the Superior Court.

Sean Harvey appeals from the order entered in the Court of Common Pleas of Philadelphia County denying his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. After careful review, we affirm.

In 2007 Harvey was convicted by a jury, the Honorable Renee Cardwell Hughes presiding, of first-degree murder for the death of 19-year-old Henry Snell, aggravated assault for injuries to Jeremiah Speakes, violation of the Uniform Firearms Act (VUFA), and possessing an instrument of crime. The murder victim, Snell, had killed Harvey's nephew, Wendell Porter, in connection with an ongoing string of gang violence, but Snell never faced charges in connection with Porter's death. Subsequently, Snell and a friend, Jeremiah Speakes, were leaving a barbershop, aware that Harvey and another individual had been circling the block. Snell and Speakes were unable to drive away because two of the tires on their vehicle had been deflated. Harvey approached the vehicle with a loaded gun and fired repeatedly, killing Snell and injuring Speakes.

The trial court summarized the facts as follows:

Two rival gangs, the Master Street Boys and the Lansdowne Avenue Boys, engaged in warfare on the streets of Philadelphia for many years. On March 10, 2005, Wendell Porter ("Peanut"), [Harvey's] nephew, shot Roger Anderson while he was riding in a car past Media Street with his cousin, David Kennedy ("Little Dave"). Tension between the rival gangs escalated. David Kennedy, Devon Skates and Henry Snell ("Little Henry" or "Boo Boo") went to talk to Porter on March 10, 2005[,] to "squash" the feud between the two gangs. While talking to Porter, Snell heard [Harvey] "on a chirp [the sound made by Nextel cell phones that include a walkie-talkie feature] telling Porter to shoot that ni**a." Snell saw the gun and shot first, killing Porter. A fully loaded handgun was found on his body. The next day two men shot at Kennedy's house. Snell was never apprehended for Wendell Porter's death.
On April 21, 2005, Jeremiah Speakes ("Q") drove home from college for the weekend. Speakes arrived in his West Philadelphia neighborhood around 3:00 pm and saw Snell on the corner of Redfield and Lansdowne Avenue. The two spoke and Snell accompanied Speakes to the barbershop at 55th and Poplar Avenue. While Speakes waited in line for his barber, Snell chose to have his hair cut by a different barber. Snell finished his haircut and borrowed Speakes' phone to call Cornell Drummond ("Nell"), his cousin. They spoke for about a minute. Snell asked Drummond to come pick him up because [Harvey] and Baker Green ("Bakir") were circling the block and looking for him to retaliate for Wendell Porter's death. Snell went back upstairs and told Speakes that he wanted to go back towards Lansdowne Avenue because someone was coming to the barbershop from
Master Street. Speakes agreed to leave. The two went out to Speakes' car parked on the corner of 55th and Poplar Streets. Snell got into the passenger side and while Speaks was entering the car he saw [Harvey] creeping up to the passenger side of the car. Speakes saw [Harvey] holding a gun, heard five or six shots, then saw Snell slump down in the seat. Speakes heard [Harvey] say to Snell, "I got you."
Police and medics responded to the scene. While the medics attended to Snell, police found Speakes in the barbershop and transported him to the hospital. Henry Snell died as a result of multiple gunshot wounds, while Speakes suffered multiple gunshot wounds to the legs.
Trial Court Opinion, 7/11/08, at 2-3 (citations and footnotes omitted).

Following his conviction, the court sentenced Harvey to life imprisonment for murder and to an aggregate concurrent term of imprisonment of 16 to 32 years on the remaining convictions. On direct appeal, this Court affirmed. See Commonwealth v. Harvey , No. 2427 EDA 2007 (Pa. Super., filed March 26, 2009) (unpublished memorandum). The Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Harvey , 604 Pa. 704 (Pa. 2009). The United States Supreme Court denied Harvey's petition for certiorari. Harvey v. Pennsylvania , 562 U.S. 903 (2010).

Harvey filed a timely PCRA petition. The Commonwealth filed a motion to dismiss, and the Honorable Shelly Robins New dismissed the petition, without a hearing, on November 22, 2013.

Harvey filed a timely notice of appeal. He raises eleven claims of ineffectiveness of counsel, asserting he was denied "his rights under Article 1 § 9 [of] the Constitution of the Commonwealth of Pennsylvania and the Sixth Amendment to the Constitution of the United States of America to effective assistance of counsel in that[:]

1. Trial counsel failed to object and ask for a mistrial related to testimony and argument by the prosecutor about the Anderson shooting when it was previously ruled that it was inadmissible;
2. Trial counsel failed to object and request a mistrial after admission of testimony and related argument by the prosecutor about the Skates shootings when it was previously ruled that it was inadmissible;
3. Trial counsel failed to object to testimony and related argument by the prosecutor about the shooting outside the Kennedy house when it was previously ruled that it was inadmissible;
4. Trial counsel failed to investigate, interview and effectively cross-examine and clarify prejudicially confusing testimony from Cornell Drummond;
5. Trial counsel failed to file a pretrial motion to suppress and to object to showing the jury/admission of Porter's gun and ammunition;
6. Trial counsel failed to object and preserve for appeal the court's ruling denying a Kloiber charge;
7. Trial counsel incorrectly advised Appellant that he should not testify on his own behalf because he could be impeached with prior arrests that did not result in convictions;
8. Trial counsel failed to object to the Commonwealth's assertion that Appellant "ran everything" on Master Street;
9. Trial counsel violated Appellant's rights under the Confrontation Clause when counsel stipulated to the testimony of a physician which was based on inaccurate information;
10. Trial counsel, without Appellant's permission, abandoned several meritorious claims on direct appeal;
11. The cumulative effect of the above-cited ineffectiveness of counsel prejudiced Appellant, denying him due process of law and a fair trial.

Our standard and scope of review for the denial of a PCRA petition is well settled:

Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact and the petitioner is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings. A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order 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. Smith , 121 A.3d 1049, 1052 (Pa. Super. 2015) (citations and quotations omitted). Additionally,
[i]t is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel's error. The PCRA court may deny an ineffectiveness claim if the petitioner's evidence fails to meet a single one of these prongs. Moreover, a PCRA petitioner bears the burden of demonstrating counsel's ineffectiveness.
See Commonwealth v. Franklin , 990 A.2d 795, 797 (Pa. Super. 2010) (citations omitted). Our courts use the Strickland actual prejudice test for ineffectiveness claims, which requires a showing of a reasonable probability that the outcome of the proceeding would have been different but for counsel's constitutionally deficient performance. See Strickland v. Washington , 466 U.S. 668, 694 (1984); see also Commonwealth v. Sepulveda , 55 A.3d 1108 (Pa. 2012). "[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Commonwealth v. Spotz , 84 A.3d 294, 312 (Pa. 2014).

Following a thorough review of the parties' briefs, the relevant law and the certified record, we affirm based on the PCRA court opinion, authored by Judge Robins New. We direct the parties to attach a copy of that opinion in the event of further proceedings.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/22/2016

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Summaries of

Commonwealth v. Harvey

SUPERIOR COURT OF PENNSYLVANIA
Sep 22, 2016
No. J-S51017-16 (Pa. Super. Ct. Sep. 22, 2016)
Case details for

Commonwealth v. Harvey

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA Appellee v. SEAN HARVEY Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 22, 2016

Citations

No. J-S51017-16 (Pa. Super. Ct. Sep. 22, 2016)