Opinion
430 EDA 2021
03-08-2022
COMMONWEALTH OF PENNSYLVANIA v. JEROME LIVINGSTON Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 26, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008510-2015
Joseph D. Seletyn, Esq.
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E. [*]
MEMORANDUM
PANELLA, P.J.
Jerome Livingston appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. Additionally, PCRA counsel has filed a petition to withdraw from representation along with an Anders brief in which he concludes there are no meritorious issues to raise on appeal. Because we agree with counsel that Livingston's claims are without merit, we affirm the PCRA court's order dismissing the PCRA petition, and grant PCRA counsel leave to withdraw.
We have amended the caption to reflect that the notice of appeal was filed from the PCRA court's order entered on March 26, 2021.
Anders v. California, 386 U.S. 738 (1967).
We note that PCRA counsel mistakenly labeled his brief an Anders brief. Anders applies only when counsel seeks to withdraw from representation on direct appeal. Where, as here, counsel seeks to withdraw from representation on collateral appeal, Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), apply. However, counsel's mistake is not fatal to his application to withdraw, "because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter." See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted). Therefore, our practice in these situations is to accept PCRA counsel's Anders brief and evaluate whether it substantially satisfies Turner/Finley criteria. See id. at 819.
Livingston's PCRA petition challenged his conviction for participating in a conspiracy with Richard Cook to lure Dennis Scott out of his home at night and rob him.
The Commonwealth presented evidence that on June 23, 2015, Niketta Burnside was living in a townhouse at 45th and Market Streets in Philadelphia with her children and paramour, Scott. At approximately 4:30 a.m., she awoke to feed her infant and discovered the residence had no power. Burnside proceeded downstairs where Scott was asleep to tell him about the outage.
At that time, Richard Cook knocked on the front living room window and door and informed the couple that there was a power outage in the neighborhood. However, Burnside noticed that the houses across the street had power. Consequently, Scott went to the backyard to investigate the exterior electrical breaker box. As Scott stood outside the back door, Burnside observed Livingston enter the backyard, point a gun at Scott, and tell Scott not to move.
As a result, Burnside ran upstairs with her children, locked herself in a bedroom, and called the police. The police arrived shortly thereafter and found Livingston hiding in a bush, and Cook leaning on a fence nearby. The police also found an operable gun in a hole in the fence near the spot Cook was standing. Additionally, Burnside positively identified Livingston as the person who had pointed a gun at Scott.
On June 23, 2015, the Commonwealth charged Livingston with criminal conspiracy, possession of a prohibited firearm, carrying an unlicensed firearm, criminal trespass, carrying a firearm in public in Philadelphia, possession of an instrument of crime, simple assault, and recklessly endangering another person ("REAP"). The trial court scheduled a preliminary hearing for July 9, 2015. While the Commonwealth was ready to proceed on that date, Livingston requested a continuance.
The trial court rescheduled the preliminary hearing to August 20, 2015. Following that hearing, the charges were held for court. On September 9, 2015, Livingston filed a motion to quash, arguing that the Commonwealth did not present a prima facie case that Livingston committed the crimes. The trial court scheduled a pre-trial conference on October 7, 2015. However, on that date, Livingston requested a continuance of the pre-trial conference to consider a plea offer from the Commonwealth.
On November 18, 2015, Livingston rejected the plea offer, and the trial court scheduled a scheduling conference on December 2, 2015. In the interim, on November 19, 2015, Livingston filed a motion to suppress. To address Livingston's pretrial motions, the trial court continued the scheduling conference and scheduled a hearing on the motions for January 19, 2016. On that date, however, the trial judge was not available, and the hearing was continued until February 10, 2016, at which time the Commonwealth sought a continuance. The trial court subsequently denied Livingston's motion to quash on March 1, 2016.
It is unclear from this record whether the trial court addressed Livingston's motion to suppress.
Ultimately, the case proceeded to a bench trial on October 14, 2016. The trial court found Livingston guilty of the above crimes and sentenced him to an aggregate sentence of 6½ to 13 years in prison, followed by 5 years' probation. This Court affirmed the judgment of sentence, and the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Livingston, 1683 EDA 2017 (Pa. Super. 2018) (unpublished memorandum), appeal denied, 217 A.3d 179 (Pa. 2019).
On December 31, 2019, Livingston timely filed a pro se PCRA petition, claiming that his trial counsel was ineffective for failing to raise a Pa.R.Crim.P. 600 motion and appellate counsel was ineffective for failing to raise a sufficiency of the evidence claim on direct appeal. The PCRA court appointed Livingston counsel, who subsequently filed a Finley no-merit letter, stating that Livingston's ineffectiveness claims were without merit. On December 9, 2020, the PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 and allowed Livingston 20 days to file a response. However, instead of filing a response, Livingston filed a pro se notice of appeal from an order allegedly entered on January 11, 2021.Thereafter, on March 26, 2021, the PCRA court dismissed Livingston's PCRA petition.
The PCRA court did not dispose of PCRA counsel's attempt to withdraw representation.
Although Livingston was still represented by counsel at the time he filed the notice of appeal, we are permitted to consider his pro se notice of appeal. See Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa. 2011) (holding that a pro se notice of appeal filed by a represented appellant is not automatically void). Notably, however, the docket does not reflect any order or other activity on January 11, 2021.
Initially, we must determine whether this appeal is properly before this Court. Under Pennsylvania law, aside from exceptions not applicable here, appeals may be taken only from final orders. See Pa.R.A.P. 341(a) ("[A]n appeal may be taken as of right from any final order"). "An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal." Pa.R.Crim.P. 910. Further, while an appeal may be regarded as prematurely filed, it may be perfected once a final order is entered. See Pa.R.A.P. 905(a)(5) ("A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof").
On July 19, 2021, this Court entered a rule to show cause why the appeal should not be quashed, noting that the purported January 11, 2021 order was not entered in the docket. Livingston did not file a response. Subsequently, this Court entered an order informing the parties that this issue would be referred to this panel to decide the merits of this issue.
Here, Livingston filed a notice of appeal after the PCRA court issued its Rule 907 notice; accordingly, no final order had been entered. See Pa.R.A.P. 341(a); Pa.R.Crim.P. 910. However, the record further reveals that the PCRA court issued a final order dismissing Livingston's PCRA petition on March 26, 2021. Therefore, despite the fact Livingston filed a notice of appeal from a non-existent order and prior to the entry of a final order, in the interest of judicial economy and in keeping with the spirit of Rule 905(a)(5), we will treat Livingston's notice of appeal as timely filed from the dismissal of his PCRA petition on March 26, 2021. See Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa. Super. 2012) (accepting a premature notice of appeal filed after the entry of the Rule 907 order and before the final order dismissing the petition).
We next address PCRA counsel's request to withdraw from representation. Pursuant to Turner/Finley, competent counsel is required to conduct an independent review of the record before withdrawal on collateral appeal is permitted. See Widgins, 29 A.3d at 817. Such independent review requires proof of a "no-merit" letter by PCRA counsel detailing the nature and extent of his review; the letter must list each issue the PCRA petitioner wished to have reviewed; and an explanation of why the issues were without merit. See id. at 818. In addition, counsel must send the appellant a copy of the no-merit letter, a copy of the application to withdraw, as well as a statement advising the appellant of his right to proceed with new counsel or pro se. See id. If counsel meets these procedural prerequisites, this Court will then conduct its own review of the merits of the appeal. See id. Only if we agree with counsel that the issues lack merit will we permit counsel to withdraw and deny relief. See id.
Here, PCRA counsel indicated that he had thoroughly reviewed the record, identified the issues that Livingston sought to raise, and explained why the issues lack merit. In addition, PCRA counsel sent Livingston copies of the Turner/Finley brief and petition to withdraw and advised him of his rights in lieu of representation. Therefore, because counsel has largely complied with the necessary procedural prerequisites, we turn to our own independent review of the record to determine if we agree with counsel's conclusion that Livingston's PCRA petition was without merit.
We note that PCRA counsel initially failed to attach a letter to his petition to withdraw as counsel advising Livingston of his right to retain counsel or proceed pro se in this appeal. Therefore, this Court issued a per curiam order, directing PCRA counsel to provide the Prothonotary of this Court with copies of the letter mailed to Livingston. On August 18, 2021, this Court received the letter from counsel to Livingston informing him of his rights. Livingston has not filed a response. While counsel had trouble correctly advising Livingston of his rights going forward, he eventually complied, and we do not see this error as an impediment to counsel's withdrawal.
"The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error." Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Id. (citation omitted).
To succeed on an ineffectiveness claim, Livingston must demonstrate by a preponderance of evidence that "(1) [the] 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 proceedings would have been different." Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010) (citations omitted). Counsel is presumed to be effective, and the burden is on the appellant to prove otherwise. See Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. See Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
First, Livingston argues that his trial counsel was ineffective for not filing a motion to dismiss his case based on a violation of Pa.R.Crim.P. 600. See Anders Brief at 12-17. Livingston focuses primarily upon three periods of delay: the 42-day period between the preliminary hearings on July 9, 2015, and August 20, 2015; the 42-day period between October 7, 2015, and November 18, 2015, during which Livingston considered the Commonwealth's plea offer; and the 70-day period between December 2, 2015, and February 10, 2016, wherein the trial court considered Livingston's pre-trial motion. See id. at 15-16.
Pertinently, Rule 600 provides that "[t]rial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed." Pa.R.Crim.P. 600(A)(2)(a). Further, "periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence," while "[a]ny other periods of delay shall be excluded from the computation." Pa.R.Crim.P. 600(C)(1). "[T]he Commonwealth is required to demonstrate that it acted with due diligence during a time period before that period can be deemed excludable." Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021). "Due diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort." Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). However, in the context of a PCRA petition alleging ineffective assistance of counsel, the burden lies on Livingston to establish that the Commonwealth did not exercise due diligence. See Commonwealth v. Wiggins, 248 A.3d 1285, 1289 (Pa. Super. 2021).
Accordingly, in determining whether Rule 600 requires dismissal of charges against a defendant, the courts of this Commonwealth must first determine the mechanical run date, and then determine whether the Commonwealth exercised due diligence during any periods of delay to establish that the period is either includable or excludable under Rule 600. We add any excludable time to the mechanical run date to arrive at an adjusted run date.
Here, the mechanical run date - 365 days from the date of the filing of the complaint - was June 22, 2016. Next, we must address each of the three time periods in question to determine whether the Commonwealth exercised due diligence in bringing the case to trial. Regarding the 42-day period between the preliminary hearings, we note that Livingston requested a continuance of the initially scheduled preliminary hearing on July 9, 2015, and the trial court rescheduled the hearing to August 20, 2015. Further, the docket indicates that the Commonwealth was ready for the hearing on July 9, 2015. Accordingly, because the Commonwealth exercised due diligence, and Livingston sought the continuance, the 42-day period would have been excluded from the Rule 600 calculations. See Pa.R.Crim.P. 600, cmt. (noting that a period of delay at any stage of the proceedings because of a continuance granted at the request of the defendant or the defendant's attorney when the Commonwealth has exercised due diligence is excludable).
We also conclude that the 42-day period between October 7, 2015, through November 18, 2015, would have been excluded from the Rule 600 computation. Indeed, the delay was caused by Livingston to allow him to consider a plea offer and there is no indication that the Commonwealth failed to exercise due diligence during this period. See Commonwealth v. Anderson, 959 A.2d 1248, 1249 (Pa. Super. 2008) (noting that time requested or agreed to by defense to consider a plea is excludable).
Finally, the 70-day period between December 2, 2015, and February 10, 2016, would have been excluded as delay occasioned by the trial court's consideration of Livingston's pretrial motion to quash. This Court has previously found that time spent litigating a defendant's pretrial motion is excludable time unless the Commonwealth fails to exercise due diligence in responding to the motion. See Commonwealth v. Cook, 865 A.2d 869, 875-76 (Pa. Super. 2004) (finding excludable a delay required to litigate a pretrial motion if the Commonwealth demonstrates that it exercised due diligence in opposing or responding to the pretrial motion). Likewise, "if the Commonwealth meets its burden of proving due diligence, only then may the trial court rely upon its own congested calendar or other scheduling problems as justification for denying the defendant's motion." Harth, 252 A.3d at 618.
The record does not indicate any delays caused by the Commonwealth in responding to the pretrial motions or that it failed to act diligently. See Wiggins, 248 A.3d at 1289. The delay between December 2, 2015, and February 10, 2016, was caused by the trial court, first to allow it to consider Livingston's motion and second because the trial judge was unavailable at the scheduled hearing on January 19, 2016. See Pa.R.Crim.P. 600, cmt. ("If the delay occurred as the result of circumstances beyond the Commonwealth's control and despite its due diligence, the time is excluded"). Therefore, this 70-day delay is not attributable to the Commonwealth.
Accordingly, there was 154 days of excludable time, which brought the adjusted run date to November 23, 2016. Because the trial occurred on October 14, 2016, no Rule 600 violation occurred. Consequently, Livingston's trial counsel did not act ineffectively by not seeking to dismiss Livingston's case for a Rule 600 violation. See Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (stating that counsel is not ineffective for failing to raise a meritless claim).
In his second claim, Livingston contends that his counsel was ineffective for failing to raise a sufficiency of the evidence claim regarding his convictions. See Anders Brief at 17-19.
PCRA counsel frames Livingston's claim as trial counsel was ineffective for failing to raise a motion for judgment of acquittal at trial. However, Livingston argued in his PCRA petition that appellate counsel was ineffective for failing to raise a sufficiency claim on direct appeal. As noted above, in a Turner/Finley no-merit brief, PCRA counsel must list each issue the PCRA petitioner wished to have reviewed. Nevertheless, because the underlying issue relates to the sufficiency of the evidence, we will address the claim to determine whether either counsel was ineffective for failing to raise a sufficiency challenge.
"When performing a sufficiency review, we consider whether the evidence introduced at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish the elements of the offense beyond a reasonable doubt." Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020) (citation omitted).
A person is guilty of conspiracy with another person to commit a crime if "with the intent of promoting or facilitating its commission he: (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime[.]" 18 Pa.C.S.A. § 903(a)(1). Further, a person commits criminal trespass if "knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by … actual communication to the actor[.]" 18 Pa.C.S.A. § 3503(b)(1)(i). Additionally, a person is guilty of simple assault if he "attempts by physical menace to put another in fear of imminent serious bodily injury[.]" 18 Pa.C.S.A. § 2701(a)(3). A person is guilty of recklessly endangering another person "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A. § 2705.
Moreover, to obtain a persons not to possess a firearm conviction, the Commonwealth must prove that the defendant possessed a firearm and that he was convicted of an enumerated offense that prohibits him from possessing, using, controlling, or transferring a firearm. See 18 Pa.C.S.A. § 6105(a)(1). A person "who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree." 18 Pa.C.S.A. § 6106(a)(1). Also, a person is prohibited from carrying a firearm on the public streets of Philadelphia. See 18 Pa.C.S.A. § 6108(a). Finally, a person is guilty of possessing an instrument of crime if they possess an instrument of crime with the intent to employ it criminally. See 18 Pa.C.S.A. § 907(a).
Here, Burnside testified that she lived in a townhome with her two children and paramour, Scott, at 45th and Market Streets in Philadelphia. See N.T., 10/14/16, at 11. Burnside indicated that on June 23, 2015, at 4:30 a.m., she awoke to feed her infant when she realized that there was a power outage. See id. Burnside alerted Scott of the power outage; subsequently, they heard Cook knock on the door and announce that the power was out in the neighborhood. See id. at 12-13. As a result, Scott exited the back door of the house to investigate the breaker box, when Livingston emerged through the gate in the backyard and pointed a gun at Scott, ordering him not to move. See id. at 13-14. Upon seeing the gun, Burnside called the police. See id. at 16. Burnside testified that she had never met either Livingston or Cook, and that neither man had permission to enter her property. Id. at 27.
The responding police officers apprehended Livingston in the rear of the premises, hiding under a bush. Id. at 114. Thereafter, the police found Cook near a fence in the back yard of a nearby home. See id. at 122. The police discovered a small hole near the fence and found a loaded semi-automatic Beretta inside. See id. at 90-91, 124. Further, the parties stipulated that Livingston was ineligible and not licensed to possess a gun on June 23, 2015. See N.T., 10/17/16, at 73-75.
The evidence, viewed in a light most favorable to the Commonwealth, is sufficient to support Livingston's convictions. Indeed, taking evidence of the specificity of the feigned power outage, the late hour, Cook's knock at the front door, and Livingston's intrusion into the backyard, we conclude that the evidence was sufficient to establish Cook and Livingston conspired together. See Commonwealth v. Johnson, 180 A.3d 474, 482 (Pa. Super. 2018) (concluding that victim's testimony regarding appellant's and his cohort's behavior during the robbery was sufficient to show a shared intent and implicit agreement, and overt acts perpetrated in furtherance of the conspiracy). Further, the evidence was sufficient to support the firearms and the possession of an instrument of crime convictions, as Burnside positively identified Livingston possessing a firearm, and the police found a gun near where Cook was found. See id. at 481 (noting that the testimony of single witness is sufficient to sustain a conviction). Moreover, evidence that Livingston pointed a gun at Scott supported the REAP conviction. See Commonwealth v. Reynolds, 835 A.2d 720, 729 (Pa. Super. 2003) (pointing a loaded gun at an individual created the danger of death or serious bodily injury and the evidence was sufficient to support the defendant's REAP conviction). Likewise, there was sufficient evidence to support the simple assault conviction, as Livingston intentionally put Scott in fear of imminent serious bodily injury and did so through physical menace, by entering the property without permission, pointing a gun at Scott, and telling him not to move. See Commonwealth v. Alford, 880 A.2d 666, 672 (Pa. Super. 2005) (concluding that pointing a gun at victim after being denied entry into her home was sufficient to prove simple assault under Section 2701(a)(3)). Finally, Livingston committed criminal trespass by entering Burnside's property without permission. Accordingly, we conclude that the evidence was sufficient to support Livingston's convictions. Hence, Livingston's ineffectiveness claim for failing to raise a sufficiency claim had no arguable merit.
In light of the foregoing, we affirm the PCRA court's order dismissing the PCRA petition and grant PCRA counsel's petition to withdraw as counsel.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.