Opinion
J-S17030-14 No. 1573 MDA 2013
03-31-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LUTHER THEODORE RIDGE, JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered July 31, 2013,
in the Court of Common Pleas of Adams County,
Criminal Division, at No(s): CP-01-CR-0000348-2009.
BEFORE: GANTMAN, P.J., and ALLEN, LAZARUS, JJ. MEMORANDUM BY ALLEN, J.:
Luther Theodore Ridge, Jr., ("Appellant"), appeals from the order denying his petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. sections 9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history as follows:
On January 8, 2009, Appellant was arrested by the Pennsylvania Fish and Boat Commission and charged with the offenses of Resisting Arrest under 18 Pa.C.S.A. § 5104 and Resisting Inspection or Apprehension under 30 Pa.C.S.A. § 904(a.1). The charges arose out of an incident in which Pennsylvania Fish and Boat Commission officials were attempting to arrest Appellant for an alleged violation of the Fish and Boat Code. At his January 26, 2010 trial, a jury found [Appellant] guilty of Resisting Inspection or Apprehension, a misdemeanor of the first degree, but found him not guilty of Resisting Arrest. On November 15, 2010, this Court sentenced Appellant to a period of thirty-six months in the County Intermediate Punishment Program all to be served on Phases III through V, subjectPCRA Court Opinion, 9/11/13, at 1-2.
to all standard conditions as well as special condition 2d [sic] consisting of anger management counseling. Appellant's sentence was made to run consecutively to any other sentence he was then serving.
On December 14, 2010, Appellant filed a pro se Notice of Appeal to the Superior Court. Trial counsel filed a Motion to Withdraw on December 14, 2010. The motion was granted by the Court on December 15, 2010. On September 21, 2011, the Pennsylvania Superior Court remanded the case for a determination of Appellant's eligibility for court-appointed counsel and to provide Appellant with the opportunity to supplement the record. In accordance with the Superior Court order, a hearing was held before this Court on September 29, 2011, during which Appellant stated that he was previously ineligible for court-appointed counsel and that his income had increased since that time. However, Appellant did not provide the Court with income documentation and refused to respond to the Court's inquiry into his financial status. Thus, Appellant was deemed ineligible for court-appointed counsel. Pursuant to the Superior Court's directive, Appellant was instructed to notify the Superior Court within fourteen days whether he was hiring private counsel to represent him on appeal or was proceeding pro se. On April 3, 2012, the Superior Court affirmed Appellant's judgment of sentence.
Appellant filed a counseled PCRA petition on May 1, 2013. On July 9, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's PCRA petition without a hearing. Appellant filed a response on July 29, 2013. After reviewing Appellant's response, the PCRA court, by order entered July 31, 2013, dismissed Appellant's petition. This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
I. Whether Trial Counsel was ineffective for withdrawing as counsel and denying [Appellant] his right of direct appeal?Appellant's Brief at 4.
II. Whether Trial Counsel was ineffective for failing to file meritorious pre-trial motions on behalf of [Appellant]?
III. Whether the PCRA Court erred in dismissing [Appellant's] PCRA claims without an evidentiary hearing when unresolved issues of material fact exist?
In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id. Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that a petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). Before an evidentiary hearing will be granted, a PCRA petitioner "must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective." Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981)). Finally, to be entitled to relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness of counsel.
To obtain relief under the PCRA premised on a claim that counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Id. "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (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. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. In assessing a claim of ineffectiveness, when it is clear that appellant has failed to meet the prejudice prong, the court may dispose of the claim on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).
Appellant first asserts that trial counsel was ineffective for withdrawing his representation, thereby denying Appellant his right to appeal. The PCRA court rejected Appellant's claim, reasoning:
Trial counsel's withdrawal was not prejudicial to Appellant because, pursuant to a Superior Court order, Appellant was afforded a hearing on whether he was eligible to receive court-appointed counsel to represent him on direct appeal. During the hearing, Appellant failed or refused to provide information that would aid the Court in determining whether he met the income guidelines necessary to receive court-appointed counsel. Accordingly, he was deemed ineligible for court-appointed counsel and, in accordance with the order of the Pennsylvania Superior Court, Appellant was directed to notify the Prothonotary of the Superior Court within fourteen days whether he intended to retain private counsel or proceed pro se. Appellant failed to comply with this Court's Order, and the Superior Court affirmed his judgment of sentence. Appellant had the opportunity to remedy trial counsel's alleged ineffectiveness by filing an adequate pro se appeal or securing alternative counsel, both of which he failed to do despite ample opportunity. Consequently, Appellant was not prejudiced by counsel's withdrawal.PCRA Court Opinion, 9/11/13, at 5-6 (footnote omitted).
Our review of the record supports the PCRA court's conclusion that Appellant cannot establish prejudice. Appellant was not denied his right to appeal. In fact, when affirming his judgment of sentence this Court stated:
In the six months that have passed since the [PCRA] court held its hearing, Appellant failed in every regard to comply with the [PCRA] court's or this Court's order.Commonwealth v. Ridge, 48 A.3d 467 (Pa. Super. 2012), unpublished memorandum at 4-5.
Accordingly, as the record stands, Appellant is ineligible for counsel, and we shall proceed with our disposition.
However, as Judge Allen pointed out in her Concurring Statement to this Court's original Memorandum, [review of] Appellant's claims are hampered by his failure to ensure that the appropriate transcripts were part of the certified record. Ridge, slip op. (concurring statement by Allen, J.). It is the responsibility of the appellant to secure all transcripts necessary to the disposition of his appeal. Commonwealth v. Steward, 775 A.2d 819, 833 (Pa. Super. 2001); Pa.R.A.P. 1911.
Because Appellant has taken no effort to ensure that the notes of testimony are part of the certified record on appeal, we are unable to conduct meaningful review, Steward, 775 A.2d at 835. As such, we are constrained to conclude that Appellant has waived his issues on appeal due to his failure to provide this Court with a complete record. Id. Moreover, Appellant's one-paragraph argument in his pro se brief is woefully deficient. Pa.R.A.P. 2119(a); and see Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d 915, 924 (2009) (concluding that an appellate brief fails to provide citation to relevant authority or fails to develop the issue in a meaningful fashion, renders the claim waived). Here, Appellant's brief fails to provide citations to the record, citations to relevant legal authority, or any pertinent argument. Thus, the judgment of sentence is affirmed.
Given the above, Appellant was afforded the opportunity to pursue his appeal, and has only himself to blame for any deficiency. Appellant cannot benefit from a claim of his own ineffectiveness on appeal. See generally, Commonwealth v. Griffin, 644 A.2d 1167 (Pa. 1994). Thus, Appellant's first issue does not entitle him to post-conviction relief.
Appellant next claims that trial counsel was ineffective for failing to file meritorious pretrial motions on his behalf. "When, as in this case, an assertion of ineffective assistance of counsel is based upon the failure to pursue a suppression motion, proof of the merit of the underlying suppression claim is necessary to establish the merit of the ineffective assistance of counsel claim." Commonwealth v. Carelli, 546 A.2d 1185, 1189 (Pa. Super. 1988) (citations omitted).
According to Appellant, "[a] motion to dismiss should have been filed based on the officer's unlawful execution of a [bench] warrant." Appellant's Brief at 15. Additionally, Appellant asserts that "a motion should have been filed to prevent the introduction of the 911 telephone call because it was irrelevant, prejudicial and constituted inadmissible hearsay." Id.
The PCRA court found no merit to either contention, reasoning as follows:
Appellant alleges that the officers at the scene did not tell him that he had the option of paying a fee and used excessive force in the arrest. However, Appellant's assertion is directly contradicted by testimony presented by the Commonwealth during his jury trial. Because "[t]he determination of the credibility of a witness is within the exclusive province of the jury," Commonwealth v. Crawford, 718 A.2d 768, 772 (Pa. 1998), jurors are free to believe or disbelieve the evidence they hear at trial.PCRA Court Opinion, 9/11/13, at 8-11.
The Pennsylvania Rules of Criminal Procedure provide that, when executing a bench warrant, an officer must either:
(a) accept from the defendant a signed guilty plea and the full amount of the fine and costs if stated on the warrant;
(b) accept from the defendant a signed not guilty plea and the full amount of collateral if stated on the warrant;Pa.R.Crim.P. 431(C)(1).
(c) accept from the defendant the amount of restitution, fine, and costs due as specified in the warrant if the warrant is for collection of restitution, fine, and costs after a guilty plea or conviction; or
(d) if the defendant is unable to pay, promptly take the defendant for a hearing on the bench warrant as provided in (C)(3).
At trial, Officer Corey Britcher, a waterways conservation officer with the Pennsylvania Fish and Boat Commission, testified that he gave Appellant the option of avoiding arrest on the offense by entering a plea and paying a sum of money. Officer Britcher testified that he told Appellant that he "would have to make a plea and satisfy with some collateral, either money or a check or go see the Judge with us." He also testified that Appellant responded by stating that he was not going to give the officers money or allow them to take him anywhere. Thus, testimony at Appellant's trial indicated that he was given the option of avoiding being taken into custody by entering a plea and posting a monetary sum. Based on that testimony, the jury, as factfinder, had a clearly-supported basis for determining that the officers followed proper procedure in executing the warrant. Accordingly, the issue Appellant presents has no merit and there was no prejudice to him.
***
Contrary to Appellant's assertion that the [911] tape was irrelevant, the introduction of the tape clearly reflected the incident as it occurred. Officer Britcher testified that "during the handcuffing process, Officer [David] Keller at some point picked up a phone off the table and had began [sic] to call for backup through the county 9-1-1 system," indicating that Officer Keller made the call as Officer Britcher was arresting Appellant. The tape recorded Appellant's voice and the voices of the arresting officers in such a way that it assisted the jury in
determining whether Appellant resisted inspection or apprehension.
Appellant also makes a conclusory statement that the call should have been challenged on hearsay grounds, but does not explain why such a challenge should have been made. Hearsay is "an out-of-court statement offered to prove the truth of the matter asserted by the declarant." Commonwealth v. King, 959 A.2d 405, 412 (Pa. Super. 2008). "An out-of-court statement is not hearsay when it has a purpose other than to convince the fact finder of the truth of the statement." Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). Here, the Commonwealth introduced the 911 call not for the truth of statements contained in the recording, but for the purpose of demonstrating the events going on at the time of the call. Appellant has not identified any statements made within the 911 call which constitute hearsay and he therefore does not meet his burden of demonstrating that trial counsel was ineffective[.]
Appellant also alleges counsel's failure to file a motion to exclude introduction of the 911 recording because, even if relevant, Appellant argues that the probative value of the tape is outweighed by the danger of unfair prejudice. In determining whether evidence is unfairly prejudicial, a court considers "that nature of the crime, the evidence being offered, and all attendant circumstances." Commonwealth v. Smith, 808 A.2d 215, 225 (Pa. Super. 2002), "Prejudice . . . does not mean detrimental to a party's case, but rather, the undue tendency to suggest a decision on an improper basis." Pittsburg Const. Co. v. Griffith, 834 A.2d 572, 585 (Pa. Super. 2003) (citations omitted). The 911 tape introduced at trial corroborated and supplemented the testimony of the officers and was probative on the issue of whether Appellant used force or threats to resist the officer and whether he refused to go with the officers after they arrested him. Furthermore, Officer Britcher described the events reflected in the tape after listening to portions of the recording, providing context to the audio heard in the courtroom. Thus, the 911 recording was more probative than prejudicial and Appellant's trial attorney was not ineffective[.]
Our review of the record supports the PCRA court's conclusions. Within his brief, Appellant asserts, "because [he] was already in handcuffs when the [911] call was made . . . the contents of the tape do not demonstrate the material fact of whether [he] was resisting arrest." Appellant's Brief at 15. Additionally, with regard to the execution of the bench warrant, Appellant argues that in order "[t]o be guilty of resisting arrest, the facts of the case must support the legal conclusion that the arresting officer acted with authority and probable cause." Id. Even were we to accept Appellant's averments, he could still not establish prejudice because he was acquitted of the resisting arrest charge. Thus, Appellant's ineffectiveness claim fails. Travaglia, supra.
In sum, since Appellant has not met his burden of establishing a factual issue as to either of his claims of trial counsel's ineffectiveness, we summarily reject his third issue, that the PCRA court erred in dismissing his PCRA petition without first holding an evidentiary hearing. Begley, supra. We therefore affirm the PCRA court's order denying Appellant post-conviction relief. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary