Opinion
J-S38041-17 No. 3794 EDA 2016
01-31-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMES ROBINSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001552-2007 BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, James Robinson, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
42 Pa.C.S.A §§ 9541-9546.
In its opinion, the PCRA court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
WHETHER THE TRIAL JUDGE'S MISAPPLICATION OF LAW UNDER PA. R.E. 803(1) DEPRIVED APPELLANT OF HIS
LIBERTY WITHOUT DUE PROCESS OF LAW UNDER PA. R.E. 803(1)?(Appellant's Brief at 5).
WHETHER TRIAL COUNSEL'S INEFFECTIVENESS IN FAILING TO OBJECT TO THE TRIAL JUDGE'S MISAPPLICATION OF THE LAW UNDER PA.R.E. 803(1) DEPRIVED APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL?
WHETHER TRIAL COUNSEL'S INEFFECTIVENESS IN FAILING TO CALL KEITH JONES AS A WITNESS DEPRIVED APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL?
WHETHER TRIAL COUNSEL'S INEFFECTIVENESS IN FAILING TO INTERVIEW BARBARA DANTZLER, VIRNA CLAY, AND [H.B.] AND TO INVESTIGATE PROPERLY DEPRIVED APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL?
WHETHER PCRA COUNSEL'S INEFFECTIVENESS IN FILING A NO-MERIT LETTER RATHER THAN FILING AN AMENDED PCRA PETITION RAISING TRIAL JUDGE'S MISAPPLICATION OF LAW, TRIAL COUNSEL'S INEFFECTIVENESS IN FAILING TO OBJECT TO THE TRIAL JUDGE'S MISAPPLICATION OF LAW AND TRIAL COUNSEL'S INEFFECTIVENESS IN FAILING TO CALL A WITNESS, DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO AN EVIDENTIARY HEARING?
WHETHER THE PCRA JUDGE'S MISAPPLICATION OF LAW UNDER COM. V. FINLEY , 550 A.2D 213, 215 (PA.SUPER. 1988), IS AN ABUSE OF DISCRETION, WHICH DEPRIVED APPELLANT OF HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW UNDER COM. V. FINLEY , 550 A.2D 213, 215 (PA.SUPER. 1988)?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jeffrey P. Minehart, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed December 16, 2016, at 1-22) (finding: (1)-(2) Superior Court sustained ruling on inadmissibility of certain statements Appellant's counsel sought to introduce at trial; Superior Court concluded statements contained multiple layers of hearsay, without any exception; because these claims were raised and rejected at trial and on appeal, they lack arguable merit under ineffectiveness of counsel test and continue to warrant no relief; (3)-(4) claim regarding Keith Jones is dismissed because Appellant failed to set forth what Jones would have testified to or how his testimony would have resulted in different verdict; regarding trial counsel's alleged ineffectiveness in failing to interview Barbara Dantzler, Virna Clay, and [H.B.], PCRA court denied relief because there is no duty to investigate all leads where, as here, overwhelming evidence implicated Appellant; regarding counsel's failure to obtain testimony from H.B. at trial to establish H.B. had confessed to his grandmother that H.B. shot victim, Appellant failed to provide sufficient information to support this claim or apply three prongs of ineffectiveness of counsel test; (5) regarding Appellant's assertion of newly discovered evidence consisting of a letter from witness Hassan East's cellmate, stating Appellant was falsely accused, letter constituted inadmissible hearsay; relief was denied because letter did not meet definition of newly discovered evidence and would serve only to impeach East; Appellant failed to establish information contained in letter would compel different result at trial, given other testimony from witnesses of crime). Accordingly, we affirm issues one through five based on the PCRA court's opinion. In Appellant's issues five and six, he also challenges PCRA counsel's stewardship for the first time in this appeal, so these claims are waived. Therefore, in all respects, we have no reason to disturb the court's decision to deny Appellant's PCRA relief.
Where PCRA counsel seeks to withdraw from representation, the petitioner must preserve any challenge to counsel's ineffectiveness in a response to counsel's no-merit letter or, if applicable, the court's Rule 907 notice. See Commonwealth v. Pitts , 603 Pa. 1, 9 n.4, 981 A.2d 875, 880 n.4 (2009). A petitioner's failure to raise an ineffectiveness of PCRA counsel claim after receiving Rule 907 notice results in waiver of the claim. Id. See also Commonwealth v. Ousley , 21 A.3d 1238, 1245 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487 (2011) (stating Pitts prohibits this Court's review of petitioner's ineffectiveness of PCRA counsel claim, where issue was raised for first time in PCRA appeal). Here, Appellant knew counsel's position on Appellant's PCRA petition and counsel's request to withdraw, since July 2016. Although Appellant sought several extensions of time, Appellant failed to respond to counsel's no-merit letter. Likewise, Appellant failed to respond to the court's Rule 907 notice of intent to dismiss, which was sent directly to Appellant as well as to counsel. Therefore, Appellant had sufficient opportunity to preserve his complaints regarding PCRA counsel and simply did not do so. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/31/18
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