Opinion
1866 EDA 2020
03-08-2022
COMMONWEALTH OF PENNSYLVANIA v. ISEAN MCNEIL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered September 24, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003970-2015
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM
NICHOLS, J.
Appellant Isean McNeil appeals pro se from the order dismissing his timely first petition for relief under the Post Conviction Relief Act (PCRA) and granting PCRA counsel leave 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). Appellant argues that the PCRA court erred in rejecting his claim that PIC and robbery should have merged for sentencing purposes and that trial counsel was ineffective for failing to challenge identification evidence and preventing Appellant from testifying at trial. We affirm.
The PCRA court summarized the underlying facts of this matter as follows:
On May 17, 2015, at approximately 11:15 p.m., police responded to a 7-11 store located at 3627 Hulmeville Road, Bensalem, Bucks County, Pennsylvania for the report of an armed robbery. The cashier at the store told police that a white male in black clothing with his face covered, came into the store and displayed a firearm. The man then directed the clerk to give him the money, to which he responded by giving him the whole register. In addition, at the robber's request, the clerk gave him his wallet and Newport 100 cigarettes.
While responding to the 9-1-1 call, police observed a white male in black clothing in a vehicle stopped at the traffic light facing south on Hulmeville Road. This location is less than one mile from the 7-11 store. Police followed the vehicle and stopped it within minutes of the robbery. Appellant was the operator of the vehicle. Behind Appellant's seat, police observed in plain view a holster for a firearm. As the interaction with Appellant progressed, police searched the trunk of the car and found a BB gun, four packs of unopened Newport 100 cigarettes, a black sweatshirt, a bandanna, and a small amount of marijuana. A search of
Appellant yielded a large wad of crumpled up cash, one open pack of Newport 100 cigarettes, and one unopened pack of Newport 100 cigarettes. The items discovered on Appellant's person, and in his vehicle, were stolen from the 7-11 store.
Appellant was arrested on May 17, 2015[, at which time he was charged with robbery, PIC, and related offenses]. Prior to trial, he filed an omnibus pre-trial motion challenging the stop of his vehicle, the subsequent search of the vehicle and seizure of physical evidence, and the legality of his arrest. [The trial court held a suppression] hearing and made findings of fact and conclusions of law. Ultimately, [the trial court] denied Appellant's motion to suppress and found the stop, search, and seizure of the vehicle, as well as the arrest of Appellant[, ] to be lawful and proper.
The only identification of Appellant at trial was by a police officer who identified him as the driver of [the] vehicle that was stopped and eventually searched. The search resulted in the seizure of a BB gun, clothes identical to the clothes worn by the robber, and items stolen from the 7-11 store.
At trial, the prosecution presented the testimony of the 7-11 store clerk and the two police officers. This testimony was enhanced by real time video from the store's security camera system and real time audio and video from the officers' dashboard cameras. Basically, jurors watched the crime, flight, car stop, search, seizure, and arrest in real time video or real time audio and video.PCRA Ct. Op., 2/22/21, at 1-2; 7-8.
Following a two-day jury trial, Appellant was convicted of all charges. On February 5, 2016, the court sentenced Appellant to ten to twenty years' imprisonment for robbery and a concurrent term of eighteen to thirty six months for PIC. This Court affirmed Appellant's judgment of sentence on direct appeal and our Supreme Court denied further review. See Commonwealth v. McNeil, 789 EDA 2016, 2017 WL 2536535 (Pa. Super. filed June 12, 2017) (unpublished mem.), appeal denied, 178 A.3d 1289 (Pa. 2018).
On November 26, 2018, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed a Turner/Finley no merit letter and a petition to withdraw as counsel on July 13, 2020. After reviewing counsel's findings and conducting an independent review of the record, the PCRA court scheduled a video hearing for September 24, 2020.
At the hearing, Appellant confirmed that he had received counsel's Turner/Finley letter and that counsel addressed each issue that Appellant had intended to raise. See N.T. PCRA Hr'g, 9/24/20, at 7-8. Appellant acknowledged that many of his issues were meritless, but expressed confusion regarding the validity of his claims that (1) PIC and robbery should have merged for sentencing purposes; and (2) that trial counsel was ineffective for failing to raise the lack of identification testimony by the victim. Id. at 10-11. The PCRA court explained that PIC and robbery had different elements and did not merge for sentencing purposes. Id. Further, the PCRA court reiterated that the Commonwealth had established Appellant's identity through video footage and testimony from a police officer, not the victim. Id. Therefore, the PCRA court explained that trial counsel had no basis to challenge the fact that the victim could not identify Appellant. Id.
Ultimately, after further discussion between Appellant and the PCRA court, the PCRA court issued an order dismissing Appellant's petition and granting counsel's petition to withdraw. See Order, 9/24/20, at 1.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a Rule 1925(a) opinion addressing Appellant's claims.
Initially, we note that Appellant's brief is unclear at points. Therefore, for purposes of our disposition, we have summarized Appellant's claims as follows:
1. The PCRA court erred in concluding that robbery and PIC did not merge for sentencing purposes.
2. Both PCRA counsel and the PCRA court erred in rejecting Appellant's claim that trial counsel was ineffective for failing to challenge the identification evidence at trial.
3. Both PCRA counsel and the PCRA court erred in rejecting Appellant's claim that trial counsel prevented him from testifying at trial.See Appellant's Brief at 1-2.
Merger - PIC and Robbery
In his first issue, Appellant argues that the PCRA court erred in concluding that PIC and robbery did not merge for sentencing purposes. Appellant's Brief at 6. In support, Appellant asserts that both charges were based on a single criminal act. Id. Further, he claims that the PIC charge "only exist[s due] to the greater offense of robbery" and that "had it not been for the allegations that this BB gun was allegedly used in a robbery, it would not in [and] of itself be viewed as an instrument of crime." Id. Therefore, Appellant concludes that the charges should have merged for sentencing purposes.
Our review of the denial of a PCRA petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (quotation marks and citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted). Further, "[t]he PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation omitted).
Whether convictions merge for sentencing purposes implicates the legality of a sentence. See Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Therefore, our standard of review is de novo and our scope of review is plenary. See id.
Our Supreme Court has explained that Section 9765 of the Sentencing Code "prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." Id. (citing 42 Pa.C.S. § 9765). "Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense." 42 Pa.C.S. § 9765. "To determine whether offenses are greater and lesser-included offenses, we compare the elements of the offenses." Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super. 2020) (citations omitted). "If both crimes require proof of at least one element that the other does not, then the sentences do not merge." Id. (citations omitted).
Section 3701(1)(ii) provides that "[a] person is guilty of robbery if, in the course of committing a theft, he . . . threatens another with or intentionally puts him in fear of immediate serious bodily injury[.]" 18 Pa.C.S. § 3701(1)(ii). To sustain a conviction for PIC, the Commonwealth must prove that the defendant (1) possessed an instrument of crime, (2) with intent to employ it criminally. See 18 Pa.C.S. § 907(a). Section 907(d) defines "instrument of crime," in pertinent part, as "[a]nything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S. § 907(d).
This Court has explained that "[s]ince PIC is an inchoate crime . . . PIC does not require that a crime be completed; rather, the focus is on whether the defendant possesses the instrument for any criminal purpose." Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa. Super. 2012). The defendant's criminal purpose provides the basis for his liability and may be inferred from the circumstances surrounding the possession of the instrument of crime. See Commonwealth v. Andrews, 768 A.2d 309, 317-18 (Pa. 2001).
In applying merger principles to PIC and robbery, this Court has explained:
[T]he statutes defining [PIC and robbery] were adopted to protect different interests of the Commonwealth. The essential elements of robbery [under 18 Pa.C.S. § 3701(a)(1)(ii)] are that a theft be committed and that there be a threat of imminent serious bodily injury. Thus, the harm against which the statute protects is the deprivation of property by threatened or actual physical harm which may not involve any instrument of crime. [PIC], however, requires the possession of certain objects whose primary use is the commission of a crime and the intent to commit such a crime. By including these elements in the crime, the legislature has indicated that the statute was enacted to protect against the threat that one who possesses certain objects will use them to commit a crime. The Commonwealth's interest in the right of citizens to be free from the threat that an implement of crime will be used to accomplish a crime is separate from the Commonwealth's interest in protecting individuals from having
their property rights jeopardized while being threatened with serious bodily injury. Because the elements of robbery and possessing instruments of crime are different and because the harm to which the statutes defining these crimes is different, we hold that they do not merge.Commonwealth v. Williams, 509 A.2d 409, 412 (Pa. Super. 1986) (citations omitted).
Here, the PCRA court addressed Appellant's claim as follows:
[A]ll of the statutory elements of one offense are not included in the statutory elements of the other offense. Appellant was lawfully convicted and sentenced for robbery [for] threatening the victim with serious bodily injury or intentionally putting him in fear of immediate serious bodily injury during the course of committing a theft. Appellant was lawfully convicted and sentenced for [PIC for] possessing an instrument of crime with the intent to commit a crime with it. Accordingly, [the] sentences imposed for robbery and [PIC] do not merge. This interpretation is consistent with existing Pennsylvania case law. See Williams, 509 A.2d at 412. ([stating that] charges of robbery and [PIC] did not merge for sentencing).PCRA Ct. Op. at 7.
Based on our review of the record, we agree with the PCRA court that Appellant's convictions for PIC and robbery did not merge for sentencing purposes. See Baldwin, 985 A.2d at 833. Although the charges arose from the same criminal act, both robbery and PIC require elements that the other crime does not. See Watson, 228 A.3d at 941; see also Williams, 509 A.2d at 412. Therefore, Appellant is not entitled to relief on this claim.
IAC - Failure to Challenge Identification Evidence
Appellant argues that trial counsel was ineffective for failing to challenge the identification evidence at trial. Appellant's Brief at 8. In support, Appellant refers to a finding of fact in the trial court's suppression ruling, which stated that "Officer [Daniel] Crozier positively identified [Appellant] by surveillance video as the robber." Id. Appellant claims that trial counsel was ineffective for failing to challenge the trial court's finding, which was made "without any testimony from Officer Crozier or any evidence to support these facts." Id. Appellant requests that "this Court look into the evidence of these allegations and the actions of [trial counsel]" and concludes that "[s]urely these actions or inactions [rise] to the level to [meet] the standards of Strickland v. Washington, 466 U.S. 668 (1984) and Commonwealth v. Spotz[, ] 896 A.2d 1191 (Pa. 2006)[.]" Id. Appellant also claims that, to the extent the trial court discussed the victim's description of Appellant in its Rule 1925(a) opinion, this demonstrates "prejudice [and] bias" because the trial judge "was not present at the scene of the crime or during [the] investigation." Id.
We presume that the petitioner's counsel was effective. See Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). To establish a claim of ineffective assistance of counsel, a defendant "must show, by a preponderance of the evidence, ineffective 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." Id.
The burden is on the defendant to prove all three of the following prongs: "(1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different." Id. (citations omitted). Further, "[a] PCRA petitioner must address each of these prongs on appeal." Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citation omitted); see also Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011) (stating that "boilerplate allegations and bald assertions . . . cannot satisfy a petitioner's burden to prove that counsel was ineffective"). "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).
Before reaching the merits of Appellant's claim, we must address the Commonwealth's assertion that Appellant waived this issue by failing to meaningfully develop the argument in his brief. See Commonwealth's Brief at 14-15.
An appellate brief must substantially comply with the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2114-2119 (explaining the specific requirements for each section of an appellate brief).
Further, this Court has explained:
When briefing the various issues that have been preserved, it is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. Pa.R.A.P. 2119(a), (b), (c).
Citations to authorities must articulate the principles for which they are cited. Pa.R.A.P. 2119(b).
This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived. Pa.R.A.P. 2101.Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2012) (some citations omitted).
"Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant." Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citation omitted). Likewise, "[w]hen a court has to guess what issues an appellant is appealing, that is not enough for meaningful review." Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001) (citation omitted).
Here, the precise basis for Appellant's underlying evidentiary claim is unclear. Although Appellant argues that trial counsel should have challenged the identification evidence at trial, he does not discuss that evidence in his brief. See generally Pa.R.A.P. 2119; Hardy, 918 A.2d at 771. Likewise, Appellant does not discuss the three-pronged test for an ineffective assistance of counsel claim, nor does he develop any argument beyond his bald assertion that trial counsel was ineffective. See Wholaver, 177 A.3d at 144; Paddy, 15 A.3d at 443. Therefore, because Appellant has failed to properly develop this claim for our review, it is waived. See Hardy, 918 A.2d at 771 (stating that "[t]his Court will not act as counsel and will not develop arguments on behalf of an appellant" (citation omitted)).
As noted by the PCRA court, the Commonwealth established Appellant's identity at trial through (1) testimony from Officer Catrombon, who stated that he stopped Appellant's vehicle and recovered a BB gun, clothes identical to the clothes worn by the perpetrator, and items stolen from the 7-11 store; and (2) video surveillance from both the robbery and the vehicle stop. See PCRA Ct. Op. at 7.In his brief, Appellant focuses on a pre-trial ruling by the suppression court, which stated that "Bensalem Police Officer Crozier reviewed surveillance video of the robbery from the 7-Eleven and positively identified [Appellant] at the scene of the car stop as the robber in the surveillance video." See N.T. Suppression H'rg, 9/30/15, at 6. However, this finding pertained only to the issue of whether police had probable cause to arrest Appellant. See Trial Ct. Op., 6/30/16, at 12 (concluding that police had probable cause to arrest Appellant based on observations by Officer Catrombon and Officer Crozier).
IAC - Interference with Appellant's Right to Testify
Appellant also argues that the PCRA court erred in rejecting his claim that trial counsel was ineffective for failing to call him as a witness at trial. Appellant's Brief at 10. In support, Appellant claims that he asked trial counsel "to put him on the stand so that he could clarify and refute allegations be[ing] made against him." Id. at 11. Further, he asserts that he "never received any colloquy from [the trial court] to be made aware of his [right to testify and] to be asked if [he] wished to waive [that right]." Id. at 10.
The decision to testify on one's own behalf "is ultimately to be made by the accused after full consultation with counsel." Commonwealth v. Thomas, 783 A.2d 328, 334 (Pa. Super. 2001) (citation omitted). A defendant can prove that counsel was ineffective for failing to call the defendant to testify by proving either that "(1) counsel interfered with his client's freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf." Id. (citation omitted). Importantly, however, "[c]ounsel is not ineffective where counsel's decision to not call the defendant was reasonable." Commonwealth v. O'Bidos, 849 A.2d 243, 250 (Pa. Super. 2004) (citations omitted).
Here, the record confirms that Appellant failed to raise this issue in his Rule 1925(b) statement. Therefore, Appellant's claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) (stating that "[i]ssues not included in the [Rule 1925(b) s]tatement . . . are waived"); see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). In any event, Appellant does not explain how counsel interfered with his right to testify nor does he state that counsel provided him with unreasonable advice. See Thomas, 783 A.2d at 334. Further, the record reflects that trial counsel advised Appellant not to testify based on his crimen falsi convictions, and that counsel ultimately left that decision up to Appellant. See Turner/Finley Ltr., Ex. A. Therefore, even if we found that Appellant properly preserved this issue, he would not be entitled to relief. For these reasons, we affirm the PCRA court's order.
Order affirmed.
Judge Bowes joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.