Opinion
J-S23022-17 No. 3203 EDA 2016
06-30-2017
COMMONWEALTH OF PENNSYLVANIA v. MARIO ANDRE POLLOCK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Dated September 16, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001386-2010 BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J. MEMORANDUM BY SOLANO, J.:
Appellant, Mario Andre Pollock, appeals from the order denying, after an evidentiary hearing, his first Post Conviction Relief Act ("PCRA") petition. Appellant contends his trial counsel was ineffective by failing to present an alibi witness and that his waiver of his right to a jury trial was invalid. Appellant's PCRA counsel has filed a petition to withdraw pursuant to Turner / Finley. After careful review, we grant counsel's petition to withdraw and affirm.
42 Pa.C.S. §§ 9541-9546.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). --------
We summarize the facts as set forth in an earlier opinion by this Court:
Thomas Witherow, II (hereinafter "Witherow") was introduced to Appellant in June 2009, at which time Witherow
purchased two eighty milligram tablets of OxyContin from him. Witherow and Appellant met up a second time in Broomall, Delaware County, where Witherow purchased two more tablets from Appellant. Witherow and Appellant continued to communicate via cell phones. Witherow eventually asked Appellant to lend him $2,400 so that Witherow could move, and Appellant agreed with the condition that Witherow pay him back $3,000 within a month. However, Witherow was laid off from his job and became unable to repay the money. The two began discussing how Witherow could pay down the debt, and Appellant suggested that Witherow begin selling OxyContin. The arrangement was that Appellant would provide Witherow with as many as ninety OxyContin tablets to sell at $50 each, and Witherow would have approximately one week to pay him back. The two met up approximately four or five more times, and each time, Appellant would provide Witherow with more tablets. These meetings would occur in Delaware County, Philadelphia County, and Bucks County.
Beginning in October, Appellant would also provide Witherow with prescriptions for OxyContin in order to pay down his debt, which was now $6000. Witherow would obtain his friends' names, birthdates, and insurance information and sell this information to Appellant; the prescriptions were then made out in these friends' names. The two met on four separate occasions, and one prescription was provided at each meeting. Witherow would then take a prescription, give it to the individual named on the prescription, and that individual would take the prescription into CVS Pharmacy and have it filled. The individuals would then, in turn, give the pills to Witherow who would give them to Appellant.
In early December 2009, Witherow went to Appellant's house, located at 5005 Chester Avenue, Apartment "B", Philadelphia County, PA, to pay him money. While at Appellant's residence, Appellant showed Witherow two different guns that Appellant stated were his. Appellant indicated that both guns had hollow point shells in them. That same month, Witherow, who still owed Appellant $6,000, told Appellant that he just wanted to be done with the debt but that he needed time to get the money. Witherow testified that Appellant was "not happy" about receiving that news and that he "wanted his money." Appellant told Witherow that he had until Saturday to get the money or Appellant would come up to his residence. At that
time, Witherow, along with his wife and two children, ages six and three, were residing at 48 West Cherry Road, Quakertown, Bucks County. Witherow did not pay Appellant any more money.
Three days later, on December 22, 2009 at approximately 1:00 a.m., while his wife and children were asleep in the house, Witherow heard a loud pounding on his door. After looking out the window, Witherow recognized a white car that belonged to Appellant. After realizing the car belonged to Appellant, Witherow called 911 and reported that someone was trying to break in. Witherow was able to see one person at the car and two additional people at the back door. Witherow later identified Appellant as one of the individuals present at his residence on the night in question. He heard the people speaking in Jamaican, which he had heard Appellant do many times before. Witherow then observed Appellant walk from his back door to Appellant's car, where Appellant opened the trunk, retrieved a black gun and began walking back toward Witherow's residence. Witherow called 911 a second time, and while he was on the phone with the dispatcher, Witherow heard more banging followed by "a lot" of gunshots. Witherow then observed Appellant and the second individual running back to the car where the third individual was waiting. Although there were three individuals present, only Appellant had the gun. Appellant then got in the driver's seat and drove away.
Officer Brian Hendrzak of the Richland Township Police Department arrived at Witherow's residence at 1:14 a.m. on the date in question. Officer Hendrzak gathered thirteen shell casings scattered throughout the street and driveway. He also observed bullet holes along the siding of the house. Detective Timothy Carroll of the Bucks County District Attorney's Office obtained a search warrant for Appellant's residence as well as the person of Appellant on December 29, 2009. . . .
Detective Carroll, along with Detective Hanks, Detective Mosiniak, and Detective Walp, all of Bucks County, Agent Meisner from the Attorney General's Violent Gun Task Force and several other agents from the task force, and Detective Wood from Philadelphia County along with several other Philadelphia County Detectives, all met at a neutral location a few blocks away from Appellant's residence to coordinate the execution of the search warrant. Detective Wood suggested that they call in Officer John Rechner and Officer Richard Kobeirowski from the
Philadelphia Police Department because they were knowledgeable with regard to firearms and frequently help with the service of search warrants in Philadelphia. The two officers arrived, and it was decided that since the residence was a second or third floor apartment in an old row home, rather than trying to knock and announce or possibly having to breach the door, they would wait until Appellant left the apartment and apprehend Appellant outside. This decision was made out of concern for the safety of all involved after considering the totality of the circumstances including the location of the residence, the fact that an actual shooting had already occurred, and that the detectives believed the guns were present in the residence. . . .
Plainclothes detectives observed Appellant enter a vehicle with a female, later identified as Tiara Harris, and pull away from the residence. The detectives radioed to the uniformed Officers Rechner and Kobeirowski. At the direction of Detective Carroll, the officers activated their sirens and lights and conducted a stop just blocks away from Appellant's residence. After the vehicle was stopped, Appellant reached his left arm out of the vehicle and placed the keys on the roof while, at the same time, leaning towards the passenger's side and the two officers observed movement within the vehicle. Officer Kobeirowski interpreted this movement as Appellant discarding something from his person into the vehicle, so he drew his weapon and approached the driver's side. Officer Kobeirowski opened the passenger side door and instructed Harris to place her hands where he could see them. Officer Kobeirowski observed a pocketbook on the floor in the middle of the vehicle and saw the butt of a handgun sticking out. Upon Appellant's exiting the vehicle, Officer Rechner searched the immediate vicinity where Appellant had been seated and recovered a wallet on the driver's seat. Detective Carroll arrived at the scene of the car stop shortly thereafter and Appellant and Harris were handcuffed. Detective Carroll informed Appellant that he had a search warrant and that they were going back to Appellant's apartment. Appellant was brought back to the apartment by two Philadelphia D.A. detectives. At that point, Detective Carroll was given Appellant's wallet by Officer [Rechner]. In his wallet, Detective Carroll found a blank prescription pad bearing the name of Dr. Rafael Cohen. [Police searched Appellant's apartment and found two guns. Those guns were later determined to match the shell casings found at the scene of the shooting.]
Appellant, along with Tiara Harris and Rachesha Hurde, a woman who was found in the apartment, were then asked to go back to the Southwest Detective headquarters at 55th and Pine in Philadelphia. Once there, all three were interviewed. Prior to questioning, Appellant was read his Miranda warnings, indicated that he understood the warnings, and agreed to talk to Detective Carroll and Detective Hanks. During this questioning, Appellant stated that he had purchased both of the guns that were recovered through a third party a few months prior. He also indicated that he had put the gun into the pocketbook, where it was ultimately recovered. Appellant was not questioned about the Quakertown shooting, and at the conclusion of the interview, the decision was made to release Appellant and continue the investigation.Commonwealth v. Pollock , 171 EDA 2013, at 2-5 (Pa. Super. Oct. 1, 2013) (unpublished memorandum; citation omitted), appeal denied , 91 A.3d 162 (Pa. 2014).
Appellant was ultimately arrested. He waived his right to a jury trial. As our earlier opinion reported
On June 21, 2010, following a stipulated waiver trial, the court found Appellant guilty of three counts of possession with intent to deliver a controlled substance, one count of presenting a fraudulent prescription, one count of possession of a firearm not to be carried without a license, one count of discharging a firearm in an occupied structure, one count of possessing an instrument of crime, one count of simple assault, one count of recklessly endangering another person, and nine counts of conspiracy . . . . On the same day, the court sentenced Appellant to an aggregate term of not less than ten nor more than twenty years' incarceration in a state correctional institution.Pollock , 171 EDA 2013, at 6. After a lengthy direct appeal process, our Supreme Court ultimately denied relief on April 30, 2014.
The PCRA court docketed Appellant's pro se PCRA petition on March 18, 2015. The court appointed counsel, who filed an amended petition. After an evidentiary hearing, the PCRA court denied Appellant's petition on September 26, 2016. Appellant timely appealed, and Appellant's counsel filed a Turner / Finley letter and brief with this Court, along with a petition to withdraw as counsel. Appellant did not file a pro se or counseled response to the Turner / Finley letter.
In the Turner / Finley letter, PCRA counsel raises the following issues on Appellant's behalf: "whether [Appellant] knowingly waived [his] right to a jury trial and whether counsel was ineffective for failing to present an alibi defense." Turner / Finley Letter at 4 (unpaginated).
Our standard of review of a PCRA court's denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the record evidence and free of legal error. Commonwealth v. Wilson , 824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied , 839 A.2d 352 (Pa. 2003). Before we review Appellant's claim, however, we must ascertain whether PCRA counsel satisfied the requirements to withdraw:
The Turner / Finley decisions provide the manner for post-conviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney's withdrawal. The necessary independent review requires counsel to file a "no-merit" letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, then must conduct its own
independent evaluation of the record and agree with counsel that the petition is without merit.Commonwealth v. Freeland , 106 A.3d 768, 774 (Pa. Super. 2014) (citations omitted).
. . . [In addition,] counsel is required to contemporaneously serve upon his client his no-merit letter and application to withdraw along with a statement that if the court granted counsel's withdrawal request, the client may proceed pro se or with a privately retained attorney.
Here, we conclude that PCRA counsel's Turner / Finley no-merit letter complies with all of these requirements. See Freeland , 106 A.3d at 774. Accordingly, we conduct our own independent evaluation of the record to ascertain whether we agree with PCRA counsel that Appellant is not entitled to relief. See id.
The two issues raised by Appellant are claims of ineffective assistance of counsel. Counsel is presumed to have been effective. To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must demonstrate the following: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) petitioner was prejudiced by counsel's act or omission. See Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987). Where "the underlying claim is meritless, the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit," Commonwealth v. Spotz , 47 A.3d 63, 122 (Pa. 2012), because "counsel cannot be considered ineffective for failing to pursue a meritless claim." Commonwealth v. Lopez , 739 A.2d 485, 495 (Pa. 1999), cert. denied , 530 U.S. 1206 (2000). With respect to the third requirement, a finding of "prejudice" requires the petitioner to show "there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different." Commonwealth v. Stevens , 739 A.2d 507, 512 (Pa. 1999). "If a petitioner fails to prove any of these [three] prongs, his claim fails." Commonwealth v. Simpson , 66 A.3d 253, 260 (Pa. 2013).
After careful review of the parties' briefs, the record, and the decision by the Honorable Wallace H. Bateman, Jr., we affirm on the basis of the PCRA court's decision. See PCRA Ct. Op., 12/21/16, at 11-16 (holding: Appellant failed to establish the defense of alibi, given, among other facts, his admission that he was at the scene of the crime; the record establishes Appellant's knowing, intelligent, and voluntary waiver of his right to a jury trial; and, thus, Appellant's trial counsel could not have been ineffective). Having conducted our own independent review, we agree with both counsel and the PCRA court that Appellant's petition lacks merit. See Freeland , 106 A.3d at 774. Accordingly, we affirm the order below and grant counsel's petition to withdraw. The parties are instructed to attach a copy of the PCRA court's opinion to any filing referencing this Court's decision.
Petition to withdraw granted. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/30/2017
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