Opinion
J-S78026-16 No. 359 WDA 2016
11-23-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. SHAUN EDWARD KIMMEL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 3, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001950-2012 BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J. MEMORANDUM BY OTT, J.:
Former Justice specially assigned to the Superior Court.
Shaun Edward Kimmel appeals pro se from the order entered February 3, 2016, in the Court of Common Pleas of Westmoreland County, that denied his first petition for collateral relief, filed pursuant to Pennsylvania's Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Kimmel was sentenced to serve a term of three to six years' incarceration, after he was convicted by a jury of three counts of delivery of a controlled substance, three counts of possession of a controlled substance with intent to deliver, and three counts of possession of a controlled substance. Kimmel contends (1) appellate counsel was ineffective during the direct appeal stage in failing to preserve or argue to this Court the issues identified in the Pa.R.A.P. 1925(a) statement, i.e., the insufficiency of the evidence and the admission of hearsay testimony, and (2) appellate counsel was ineffective in failing to preserve and argue in this Court the issue of whether the trial court erred in permitting the Commonwealth to introduce hearsay evidence at trial. See Kimmel's Brief at 5. Based upon the following, we affirm on the basis of the PCRA court's sound opinion.
Kimmel's first name also appears in the record as "Shawn."
The PCRA Court granted appointed counsel's request for leave to withdraw after counsel filed a no-merit letter. See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
See 35 P.S. § 780-113(a)(30) and (a)(16).
Briefly, we note the charges against Kimmel arose from his delivery of heroin to a confidential informant (CI) on three separate occasions. Each delivery involved a controlled purchase by the CI from Kimmel and each purchase was observed and monitored by police.
Following sentencing, Kimmel filed a direct appeal, and this Court affirmed the judgment of sentence on February 12, 2014. Commonwealth v. Kimmel , 97 A.3d 802 (Pa. Super. 2014) (unpublished memorandum) (finding sole claim challenging the weight of the evidence waived for failure to present to trial court and include in the Rule 1925(b) statement).
On August 25, 2014, Kimmel filed a pro se PCRA petition. Counsel was appointed and filed an amended PCRA petition on September 14, 2015. An evidentiary hearing was held on October 20, 2015. Subsequently, on November 15, 2015, appointed counsel filed a no-merit letter and requested leave to withdraw. On January 13, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss. On February 3, 2016, the PCRA court dismissed the petition, and granted appointed counsel's request to withdraw. This timely appeal followed.
We note Kimmel filed a pro se notice of appeal that is time-stamped March 4, 2016. We also note Kimmel's notice of appeal and brief in support of appeal were mailed from prison in an envelope post-marked March 1, 2016. According to the prisoner mailbox rule, an appeal will "be deemed 'filed' on the date that the appellant deposits the appeal with prison authorities and/or places it in the prison mailbox." See Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997).
The principles that guide our review are well settled:
Under the applicable standard of review, we determine whether the ruling of the PCRA court is supported by the record and is free of legal error. We apply a de novo standard of review to the PCRA court's legal conclusions.
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With respect to Appellant's claims of ineffective assistance of appellate counsel, we begin with the presumption that counsel is effective. To prevail on an ineffectiveness claim, Appellant must satisfy, by a preponderance of the evidence, the performance and prejudice standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This
Court has divided the performance component of Strickland into two subparts dealing with arguable merit and reasonable strategy. ... Commonwealth v. Pierce , 515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987). With regard to "reasonable basis" in the appellate context, "[i]t is well settled that appellate counsel is entitled, as a matter of strategy, to forego even meritorious issues in favor of issues he believes pose a greater likelihood of success." To establish Strickland/Pierce prejudice in the appellate representation context , the petitioner must show that there is a reasonable probability that the outcome of the direct appeal proceeding would have been different but for counsel's deficient performance.Commonwealth v. Blakeney , 108 A.3d 739, 749-50 (Pa. 2014) (some citations omitted) (emphasis added).
The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied "'that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings.'" "To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing."
In his first issue, Kimmel contends counsel was ineffective on direct appeal because she failed to argue either of the issues raised in the Pa.R.A.P. 1925(b) statement — namely, the circumstantial evidence presented by the Commonwealth was insufficient to support Kimmel's convictions, and the trial court erred in permitting the trial court to introduce hearsay evidence at trial — and argued a weight claim that this Court found to be waived. Kimmel posits that appellate counsel's failures completely foreclosed appellate review. In this regard, Kimmel contends that appellate counsel's ineffectiveness was equivalent to the failure to file a brief, and as such, he is entitled to a presumption of prejudice. In his second issue, Kimmel argues that appellate counsel was ineffective in failing to preserve and argue that the trial court erred in admitting out-of-court statements of identification by the CI in violation of the hearsay rule, Pa.R.E. 803.1(2). See Kimmel's Brief at 9.
The PCRA judge, the Honorable Rita Donovan Hathaway, has authored an opinion that cogently rejects, inter alia, the two arguments raised in this appeal. See PCRA Court Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching Order of Court and Notice of Intent to Dismiss, 1/13/2016, at 1-10, and 12 (finding: (1) counsel's failure to pursue on appeal every claim requested by a defendant is not per se ineffectiveness, and Kimmel must satisfy the Pierce ineffectiveness test; trial court had determined in its Rule 1925(a) opinion that there was a plethora of evidence to support Kimmel's conviction and same facts support the notion that the jury verdict was not against the weight of the evidence; Kimmel's weight of the evidence claim fails under all three prongs of the ineffectiveness test, and (2) Kimmel's hearsay challenge to Sergeant Fiscarella's testimony with respect to the August 14, 2011 controlled buy, regarding the CI's identification of Kimmel by looking at a J-NET photograph, fails under the prejudice prong; although admission of such evidence was error because CI was not present at trial and did not testify, see Pa.R.E. 803.1(2), the error was harmless, given the testimony of police about identifications made shortly after the controlled buys and credible in-court identifications of Kimmel). Our review confirms that further discussion by this Court is not warranted here. Accordingly, we affirm the denial of PCRA relief on the basis of the PCRA court's able opinion.
In the event of further proceedings, we direct the parties to attach a copy of the PCRA Court's Pa.R.A.P. 1925(a) Opinion, 6/6/2016, attaching Order of Court and Notice of Intent to Dismiss, 1/13/2016, to this memorandum.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/23/2016
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