Opinion
J-S40036-16 No. 2396 EDA 2014
06-28-2016
COMMONWEALTH OF PENNSYLVANIA v. CURRY ROBINSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered on July 15, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0601281-2005 BEFORE: BOWES, MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Curry Robinson ("Robinson") appeals, pro se, from the Order dismissing his Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
The PCRA court set forth the relevant factual history in its Opinion, which we adopt herein for purposes of this appeal. See PCRA Court Opinion, 12/4/14, at 3-8. The PCRA court also set forth the relevant procedural history in its Pa.R.A.P. 1925(a) Opinion, which we adopt herein for purposes of this appeal. See PCRA Court Opinion, 6/2/15, at 1-5.
In its recitation of the procedural history of this case, the PCRA court erroneously indicated that Robinson was found guilty following a jury trial on January 12, 2015. In fact, Robinson was found guilty following a non-jury trial on January 4, 2006.
On appeal, Robinson raises the following issues for our review:
1. Whether[] [Robinson's] due process rights were violated[,] where the [trial] court broaden[ed] the alleged sexual assaults over several years[,] and [were] all prior counsel ineffective for failing to raise this issue?Brief for Appellant at 1 (issues renumbered for ease of disposition).
2. Whether[ Robinson] was prejudiced by trial counsel for stipulating to the [Sex Offender Assessment Board ("SOAB")] finding[] that [Robinson] is a [sexually violent predator ("SVP")] without fully comprising [sic] [Robinson] of how this course[] would [a]ffect [sic] [Robinson's] rights to challenge or appeal the [SOAB] findings[,] and [were] prior counsel ineffective for failing to raise this issue of trial counsel's ineffectiveness?
3. Whether[ Robinson's] due process rights [were] violated[] due to there being no colloquy regarding the stipulation to the [SOAB findings?]
4. Whe[]ther[] trial counsel['s] improprieties were []cumulative, and did [Robinson] suffer layered ineffectiveness?
5. Whether[] the [PCRA] court prematurely dismissed [Robsinson's PCRA Petition] without reviewing [Robinson's] issues of ineffective assistance of [PCRA] counsel[] for failing to amend issues of merit[,] inter alia[,] in [Robinson's] [R]espon[s]e[] to the court's [Pa.R.Crim.P.] 907 [N]otice[,] and was [PCRA] counsel ineffective for failing to amen[d] [Robinson's] issues?
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any
grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Robinson's brief addresses additional issues which were not identified in his Statement of Questions Involved. See Brief for Appellant at 15-25, 26-29, 30-33. As these issues were not included in the Statement of Questions Involved, we decline to address them. See Pa.R.A.P. 2116(a) (providing that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.").
In his first issue, Robinson contends that he suffered a fatal "variance" due to the trial court's restatement of facts during trial, at the end of trial, at sentencing, and in its Opinion. Brief for Appellant at 10. Robinson points to the trial court's statements regarding Robinson's sexual abuse of the four female child victims as having taken place "between the years 1996 and 2002," and asserts that the 1996 date only pertains to one of the four child victims. Id. at 11. Robinson claims that the trial court's statements "broadened" the time period of the sexual assaults for the three other child victims "by creating the impression that all three aforesaid girls were allegedly being abused over several years." Id. Robinson argues that the trial court's statements created an impermissible variance, and prejudiced his ability to present an alibi defense. Id. at 12. Robinson contends that the trial court's alleged misstatements regarding the dates of the alleged sexual abuse improperly influenced its Opinion and the sentence imposed on Robinson. Id. at 11-12. Robinson asserts that the trial court substituted its own opinions regarding the dates of the alleged sexual abuse, and its actions showed ill-will and bias. Id. at 11.
To the extent that Robinson seeks to raise a claim concerning trial court error, such a claim is not preserved for appellate review because he could have raised it previously. See 42 Pa.C.S.A. § 9544(b) (providing that "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal"); see also Commonwealth v. Ford , 809 A.2d 325, 329 (Pa. 2002) (holding that petitioner's claims of trial court error, which could have been raised on direct appeal but were not, were waived under the PCRA).
Robinson concedes that his trial counsel pointed out to the trial court that the 1996 date pertained only to the sexual assaults on one of the child victims, but claims that the trial court ignored trial counsel's efforts to clarify the time period for the sexual assaults on the other three child victims. Id. Robinson asserts that his trial counsel was ineffective because counsel should have continued to object to the trial court's alleged misstatements regarding the dates of the alleged sexual assaults. Id. at 14.
Our review of the record discloses that this particular issue of trial counsel ineffectiveness was not raised before the PCRA court. Therefore, we cannot address it on appeal. See Commonwealth v. Santiago , 855 A.2d 682, 691 (Pa. 2004) (stating that "a claim not raised in a PCRA petition cannot be raised for the first time on appeal."). Moreover, Robinson failed to raise this issue in his Concise Statement of matters to be raised on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not raised in the concise statement are waived); see also Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that, if an appellant is directed to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived).
Robinson did not raise this claim in his pro se Petition; nor did his PCRA counsel raise it in the Amended Petition filed on Robinson's behalf.
Robinson also asserts that his PCRA counsel failed to "discern" this issue. Brief for Appellant at 14. To the extent that Robinson seeks to raise a claim of PCRA counsel ineffectiveness regarding this issue, his claim is waived, as he failed to raise this issue in his pro se Response to the PCRA court's Rule 907 Notice of its intent to dismiss Robinson's Amended Petition. See Commonwealth v. Henkel , 90 A.3d 16, 29 (Pa. Super. 2014) (explaining that claims of PCRA counsel's ineffectiveness cannot be raised for the first time on appeal, and must be raised in response to a Rule 907 notice of dismissal or in a serial PCRA Petition).
In his second issue, Robinson contends that, although he spoke to trial counsel about stipulating to the SOAB findings, their conversation "does not demonstrate that [Robinson] was fully [ap]prised of the legal bounds automatically assumed by the [PCRA] court[,] i.e.[, that Robinson] cannot challenge the findings of the SOAB, if he[,] in fact[,] agreed to being a [SVP]." Brief for Appellant at 34 (capitalization omitted). Robinson asserts that he was not fully informed of the consequences of the stipulation, and did not knowingly and intelligently provide his consent to the stipulation. Id. Robinson claims that "trial counsel never spoke to [him] regarding any conversation he allegedly had with Dr. [Timothy] Foley, [and] thereby[] committed an ethical violation." Id. at 35 (capitalization omitted). Robinson argues that the PCRA court's statement that Robinson had witnesses at the SVP hearing is incorrect because (1) trial counsel had already stipulated to the SOAB findings; and (2) Robinson's mother spoke on his behalf at the allocution stage of sentencing, not at the SVP hearing. Id.
Our review of the record discloses that Robinson's second issue, as it concerns trial counsel's ineffectiveness, was not raised before the PCRA court in either his pro se Petition or in the Amended Petition filed by PCRA counsel. Therefore, it is not preserved for appellate review. See Santiago , 855 A.2d at 691.
To the extent that Robinson claimed, in his pro se Response to the PCRA court's Rule 907 Notice, that PCRA counsel was ineffective for failing to raise this issue of trial counsel's ineffectiveness, Robinson's claim on appeal appears to be limited to trial counsel's ineffectiveness. See Brief for Appellant at 33-36. Therefore, any claim of PCRA counsel's ineffectiveness in this regard is not preserved for appellate review.
In his third issue, Robinson contends that his trial counsel was ineffective because there was no colloquy to ensure that Robinson was fully informed when he agreed to stipulate to the findings of the SOAB evaluation. Id. Brief for Appellant at 34-35. However, Robinson points out that, "when [he] stipulated to the finding[s] of the SOAB evaluation," "the [trial] court ensured that ... [Robinson] knew fully what this was saying about him[]." Id. at 35 (capitalization omitted).
Our review of the record discloses that Robinson's third issue, as it concerns trial counsel's ineffectiveness, was not raised before the PCRA court in either his pro se Petition or in the Amended Petition filed by PCRA counsel. Moreover, Robinson's third issue was not raised in his Concise Statement. Therefore, Robinson's third issue is waived. See Santiago , 855 A.2d at 691; see also Pa.R.A.P. 1925(b)(4)(vii).
To the extent that Robinson claimed, in his pro se Response to the PCRA court's Rule 907 Notice, that PCRA counsel was ineffective for failing to raise this issue of trial counsel's ineffectiveness, Robinson's claim on appeal appears to be limited to trial counsel's ineffectiveness. See Brief for Appellant at 33-36. Therefore, any claim of PCRA counsel's ineffectiveness in this regard is waived.
In his fourth issue, Robinson contends that he suffered not only the ineffectiveness of trial and direct appeal counsel, but also the ineffectiveness of PCRA counsel. Brief for Appellant at 37. Robinson asserts that he has suffered layered ineffectiveness of counsel because all prior counsel failed to raise the issues that he is now forced to raise pro se. Id . at 38.
The PCRA court determined that Robinson's fourth issue, as stated in his Concise Statement, was "too vague to permit meaningful review." See PCRA Court Opinion, 6/2/15, at 11. We agree with the reasoning of the PCRA court and affirm on this basis as to this issue. See id.; see also Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa. Super. 2011) (holding that this Court may find waiver where a concise statement is too vague); Commonwealth v. Dowling , 778 A.2d 683, 686 (Pa. Super. 2001) (holding that, when a court has to guess what issues an appellant is appealing, that is not enough for meaningful review).
Moreover, Robinson has failed to discuss, let alone satisfy by a preponderance of the evidence, the three prongs of the ineffectiveness test for each of his ineffectiveness claims against each of his counsel. See Commonwealth v. Ligons , 971 A.2d 1125, 1138 (Pa. 2009) (holding that a PCRA petitioner must present argument as to each layer of ineffectiveness, establishing all three prongs of the ineffectiveness standard for each attorney). Thus, even if Robinson's layered ineffectiveness claim had not been waived for vagueness; we would have determined that he failed to properly develop his claim on appeal. See id.; see also Pa.R.A.P. 2119(a).
In his final issue, Robinson contends that the PCRA court erred by dismissing his Petition without considering his pro se Response to the court's Pa.R.Crim.P. 907 Notice of its intent to dismiss the Amended Petition. Id. at 5. Robinson asserts that, based on the application of the "prisoner mailbox rule," his Response to the Rule 907 Notice was timely. Id. at 6. Robinson claims that the PCRA court issued its Rule 907 Notice on June 2, 2014, and that he gave his Response to prison officials on June 19, 2014, within the 20-day time period in which to respond. Id. According to Robinson, the Response was not mailed by prison authorities until June 23, 2014. Id. Robinson contends that, because his Response was timely delivered to prison authorities, the PCRA court should have considered his Response. Id. at 7-9.
"Under the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing." Commonwealth v. Brandon , 51 A.3d 231, 234 n.5 (Pa. Super. 2012) (citation omitted). However, the prisoner/appellant bears the burden of proving that he, in fact, delivered the appeal within the appropriate time period. Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997). The "cash slip" provided by prison authorities to an incarcerated petitioner, noting both the deduction from his account for the mailing to the prothonotary and the date of the mailing, constitutes sufficient proof of the date of mailing. See id.
Here, Robinson has attached to his brief a copy of his cash slip, which indicates that a deduction was made from his prison account on June 19, 2014, for the mailing of his pro se Response to the Rule 907 Notice to the prothonotary. The cash slip also indicates that the Response was received by the prison mailroom on June 20, 2014. Because Robinson has provided sufficient proof that he placed his Response in the hands of prison authorities for mailing within the 20-day period in which to respond to the PCRA court's Rule 907 Notice, we deem his Response timely. Thus, the PCRA court should not have disregarded Robinson's Response as untimely filed.
Nevertheless, Robinson is not entitled to relief. A petitioner is limited in terms of the issues that may be raised in responding to a Rule 907 notice. See Commonwealth v. Rykard , 55 A.3d 1177, 1192 (Pa. Super. 2014). After the PCRA court has issued a Rule 907 notice of dismissal, a petitioner may not raise new assertions of trial counsel ineffectiveness in his response to the notice. See id. Rather, in order to raise additional claims of trial counsel ineffectiveness, the PCRA court must grant the petitioner leave to amend his petition. See id. Notwithstanding, as noted above, issues of PCRA counsel ineffectiveness must be raised in response to a Rule 907 notice of dismissal or in a serial PCRA petition, or they are waived. See Henkel , 90 A.3d at 29.
Our review of Robinson's pro se Response to the PCRA court's Rule 907 Notice reveals that Robinson's claim of PCRA counsel's ineffectiveness is based on PCRA counsel's failure to "present all of [Robinson's] issues in [the] [A]mended [Petition]." See Pro Se Response to Rule 907 Notice, 6/25/14, at 1; see also id. (wherein Robinson asserts "[b]y counsel[']s failure to present all of the issues that [Robinson] [sic] is forced to present herein."). In his Response, Robinson set forth three claims of trial counsel ineffectiveness that PCRA counsel purportedly failed to raise on Robinson's behalf. Specifically, Robinson claimed that PCRA counsel was ineffective because he failed to raise claims that trial counsel was ineffective for (1) failing to raise and pursue an alibi defense based on the lack of specificity in the victims' testimony regarding the dates of the alleged sexual abuse, and the fact that Robinson was incarcerated for a period of time that overlapped with the time frame provided by the child victims; (2) stipulating to the findings of the SOAB, and failing to present expert testimony at the SVP hearing; and (3) failing to object to the trial court's characterization of Robinson as the child victims' babysitter. See Pro Se Response to Rule 907 Notice, 6/25/14, at 2-11.
Notably, on appeal, Robinson asserts new theories of PCRA counsel's ineffectiveness which were not raised in his Response to the Rule 907 Notice. See Brief for Appellant at 7 (arguing that "no efforts were made from [PCRA] counsel to investigate issues of [Robinson] being on detainer"); 8 (arguing that "[PCRA] counsel made no effort to contact Mr. Joel Flower for the proper verification, in order to present a character witness"). Because Robinson may not raise new claims of PCRA counsel's ineffectiveness for the first time on appeal, we cannot consider these claims. See Henkel , 90 A.3d at 21-30.
Although Robinson initially preserved these issues for our review by raising them before the PCRA court, he failed to state them with sufficient clarity in his Concise Statement. See Hansley , 24 A.3d at 415 (holding that this Court may find waiver where a concise statement is too vague); Dowling , 778 A.2d at 686 (holding that, when a court has to guess what issues an appellant is appealing, that is not enough for meaningful review). Accordingly, Robinson's claims of PCRA counsel's ineffectiveness are waived.
Moreover, Robinson has failed to discuss, let alone satisfy by a preponderance of the evidence, the three prongs of the ineffectiveness test for each of his ineffectiveness claims against each counsel. See Ligons , 971 A.2d at 1138. Thus, even if Robinson's claim of PCRA counsel's ineffectiveness had not been waived for vagueness; we would have determined that he failed to properly develop his claim on appeal. See id.; see also Pa.R.A.P. 2119(a).
In sum, although the PCRA court erred by deeming Robinson's pro se Response as untimely, we may affirm the PCRA court's decision to dismiss Robinson's Amended Petition on any grounds if the record supports it. See Ford , 44 A.3d at 1194. Based on our review of the record, including Robinson's pro se Response to the PCRA court's Rule 907 Notice, Robinson is not entitled to relief. Therefore, we affirm the PCRA court's dismissal of Robinson's Amended Petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/28/2016
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