Opinion
749 WDA 2023 J-S05028-24
08-28-2024
COMMONWEALTH OF PENNSYLVANIA v. LUIS RODRIGUEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered May 31, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000037-2019
BEFORE: PANELLA, P.J.E., KING, J., and BENDER, P.J.E.
MEMORANDUM
KING, J.
Appellant, Luis Rodriguez, appeals from the order entered in the Erie County Court of Common Pleas, which denied his petition filed under the Post Conviction Relief Act ("PCRA"). We affirm and grant counsel's petition to withdraw.
The relevant facts and procedural history of this case are as follows:
A. Events Preceding the Shootings
[Alicia Stalheim] and [Appellant] spent the night before the shooting together at [Ms. Stalheim's] home. The next morning, [Appellant] woke early and drove an hour and a half away, to Mahoning Valley Racetrack in Youngstown, Ohio, where he worked. He finished working a couple of hours later and returned to Erie at about 12:00 p.m. When he arrived in Erie he purchased a six pack of Coors Light. He also purchased Romolo chocolates for [Ms. Stalheim]. He told investigators that he consumed approximately
seven beers that day.
Shortly after purchasing the beer and chocolates, [Appellant] drove to the Pizza Hut where [Ms. Stalheim] was working. Nearby security camera footage captured [Appellant] placing the chocolates and a note on the hood of [Ms. Stalheim's] car and then driving away. A few minutes later, [Ms. Stalheim] came out to retrieve the items, and went back inside. [Appellant] told investigators that he sent one or more texts to [Ms. Stalheim] at or about the time he left the candy for her, and he became upset when she responded that she had already had Romolo's candy that morning. The text messages were not recovered, but [Appellant] told investigators he became upset because [Ms. Stalheim] punctuated her texts with the initialism "LOL," which stands for "laugh out loud," and he believed [Ms. Stalheim] was mocking or disrespecting him.
[Appellant] told the police that after he left the chocolates on [Ms. Stalheim's] car, he drove to her home in Wattsburg, approximately 10 miles away, to retrieve a handgun he had purchased three months earlier, from under a mattress where he left it the night before. According to Detective Hertel, one of the detectives who took [Appellant's] statement on the day of the murder, when asked why he got the gun, [Appellant] responded "she's done." The detectives took that to mean that he had had enough of [Ms. Stalheim's] mistreatment of him and he intended to end it by killing her. The defense disputed the detective's interpretation of [Appellant's] words and played the relevant segment of [Appellant's] statement in its entirety during cross-examination of Detective Hertel. In the video, [Appellant] appeared alert and oriented, and demonstrated a fairly clear recollection of the day's events.
Video security camera footage showed [Appellant] returning to Pizza Hut at 1:36 p.m. He drove his vehicle to the back of a neighboring car wash and remained there for several minutes. Then he…drove across the street and parked in a plaza parking lot, facing the restaurant. At 1:50 p.m., the footage shows [Ms. Stalheim] exiting the restaurant from a back door to make a pizza delivery. As she drove away, [Appellant] followed her in his vehicle. At 2:03 p.m., [Ms. Stalheim] returned to Pizza Hut, and parked her vehicle
outside the back door. [Appellant] pulled his vehicle alongside hers and came to a stop. As [Ms. Stalheim] exited her vehicle, [Appellant] quickly exited his vehicle and followed her inside. [Appellant] showed no signs of intoxication while operating his vehicle or following [Ms. Stalheim] into the Pizza Hut.
B. The Shootings
[Ms. Stalheim's] co-worker, Ashleigh Fuhrman, also shot that day, testified that she and [Ms. Stalheim] arrived for their shifts at Pizza Hut between 9:30 and 9:45 a.m. on Saturday, November 24, 2018, the day of the murder. She and [Ms. Stalheim] were the only employees working that morning. She did not notice anything unusual. [Ms. Stalheim] brought chocolates to work and shared them with Ms. Fuhrman. At around 12:00 or 12:30 p.m., [Ms. Stalheim] went to her car to retrieve chocolates she said were left there by [Appellant]. She seemed pleased to receive the chocolates. There was no sign that [Ms. Stalheim] and [Appellant] were not getting along. At about 1:45 p.m., [Ms. Stalheim] left for what would be her last pizza delivery. She returned about fifteen minutes later. As she entered the restaurant through the back door, she told Ms. Fuhrman, "I need you to call the police, Luie's got a gun." Ms. Fuhrman went to the front of the store, near the customer entrance, to make the call. As she was dialing the phone, [Appellant] appeared and pointed his gun at her stomach. She begged him not to shoot and told him she was pregnant. He was visibly shaking and had an extra fully loaded magazine clip in his hand. He turned around and walked back to the kitchen area, where [Ms. Stalheim] was located. Ms. Fuhrman could not see [Ms. Stalheim], but she saw [Appellant] raise his gun and she heard a gunshot. She fled, slowly due to being eight months pregnant, out the front door, causing a buzzer to go off. As she walked around the outside of the building toward the back door, [Appellant] approached from behind and shot her once in the shoulder. He then went back inside the restaurant, through the front door. Ms. Fuhrman remained upright and mobile. She testified that while she was walking toward the back door of the restaurant to check on [Ms. Stalheim], she heard two more shots go off inside. When she opened the door, she saw [Ms. Stalheim] laying on the floor face up, staring at
the ceiling; she closed the door and went for help.
Coroner Eric Vey, MD, testified that [Ms. Stalheim] was shot three times. Once in the hip/pelvis area, once in the wrist, and once in the head. Based on the nature and angle of the wounds, Dr. Vey opined that the hip and wrist shots occurred first and second, though he could not say in what order with certainty. Neither of those shots were immediately fatal. The hip shot likely caused [Ms. Stalheim] to fall to the floor. Dr. Vey was confident that the fatal head shot came last, because the wound angles revealed that [Ms. Stalheim] was on the floor when the head shot occurred, and she could not have raised her arm to sustain the defensive wrist shot after being shot in the head.
C. [Appellant's] Activity after the Shootings
[Appellant] left the murder scene in his vehicle within minutes of the shootings. Shortly thereafter, he bought another six pack of Coors Light beer. Text messages recovered from [Appellant's] phone, sent approximately two and a half hours after the murder to a recipient named "Brooks," stated; "I know, pa. Why she fucking with me," and "I tell her don't fuck with me. I am not like your husband."
[Appellant] was apprehended on the day of the murder along Pennsylvania Interstate 90, near exit 16, heading west toward Ohio, at approximately 6:00 p.m. Shortly thereafter he was taken to the Erie Police Station to be interviewed. Detectives Hertel and Stokes, the interviewing officers, testified that [Appellant] was cooperative with the police and showed no signs of intoxication or diminished mental capacity during the interview.
(Trial Court Opinion, filed 4/29/21, at 3-7) (internal citations and footnotes omitted).
On September 19, 2019, a jury convicted Appellant of first-degree murder, attempted murder, and two counts of aggravated assault. On October 29, 2019, the court sentenced Appellant to an aggregate term of life without parole. This Court affirmed Appellant's judgment of sentence on February 2, 2022, and our Supreme Court subsequently denied his petition for allowance of appeal. See Commonwealth v. Rodriguez, 273 A.3d 1018 (Pa.Super. 2022) (unpublished memorandum), appeal denied, Pa., 283 A.3d 173 (2022).
On September 28, 2022, Appellant timely filed a pro se PCRA petition, raising numerous issues of trial counsel's ineffectiveness, including the failure to investigate Appellant's alleged additional purchases of alcohol, failure to call various witnesses that Appellant contended would have helped his case, and failure to investigate and call an expert witness to testify in support of Appellant's voluntary intoxication defense. Additionally, Appellant contended that trial counsel was ineffective for failure to seek suppression of Appellant's recorded police interview or obtain an interpreter prior to trial, due to Appellant's alleged inability to understand the English language. The court appointed counsel, and PCRA counsel filed a supplemental PCRA petition on January 5, 2023, incorporating Appellant's pro se PCRA petition by reference and discussing in detail, most of the issues raised by Appellant.
On May 4, 2023, the PCRA court held an evidentiary hearing at which Appellant, trial counsel, Alexandra Pearson (a friend of Ms. Stalheim's), and Ellen Schmid (the owner of a beer distributor) testified. On May 31, 2023, the PCRA court denied relief.
On June 12, 2023, Appellant filed a timely, pro se notice of appeal. On June 21, 2023, the court ordered Appellant to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 26, 2023, counsel filed a timely notice of appeal, and counsel subsequently filed a notice of intent to file a Turner/Finley no-merit letter and motion to withdraw. Appellant filed a pro se Rule 1925(b) statement on July 27, 2023.
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Preliminarily, before counsel can withdraw representation under the PCRA, the law requires counsel to satisfy the mandates of Turner/Finley. Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003).
…Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Additionally, counsel must contemporaneously serve on Appellant copies of the "no-merit" letter or brief, the petition to withdraw, and a letter advising Appellant that he has the immediate right to file a brief in this Court pro se or with new privately-retained counsel. Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016). "Substantial compliance with these requirements will satisfy the criteria." Karanicolas, supra at 947.
Instantly, counsel submitted a Turner/Finley brief on appeal and a petition to withdraw as counsel. Both the brief and counsel's petition to withdraw demonstrate he has made a conscientious examination of the record and determined the appeal is wholly frivolous. Counsel notified Appellant of counsel's request to withdraw, advised Appellant of his right to retain new counsel and/or raise any points he might deem worthy of consideration pro se, and furnished Appellant with a copy of the petition and the brief prepared for this appeal. Thus, counsel has substantially complied with the technical requirements of Turner/Finley. See id. Accordingly, we proceed with our independent assessment. See Turner, supra at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct independent analysis and agree with counsel that appeal is frivolous).
In his Turner/Finley brief, counsel raises the following issues on Appellant's behalf.
Whether Appellant has stated any claims of arguable merit that would establish that defense counsel was ineffective in failing to adequately investigate and present extraneous evidence of his intoxication at the time of the homicide including principally failing to call Ellen Schmid as a defense witness in that regard?
Whether Appellant has stated any claims of arguable merit that would establish that defense counsel was ineffective in failing to seek the suppression of the police statement made by Appellant on the ground that said statement was secured without the provision of an interpreter?
Whether Appellant has stated any claims of arguable merit that would establish that defense counsel was ineffective in failing to secure the services of an interpreter for purposes of meeting with Appellant in preparing for trial?(Turner/Finley Brief at 2).
Additionally, Appellant raises the following issues pro se:
Was PCRA Counsel…ineffective per se for incorporating Appellant's pro se PCRA Petition by reference in his Supplemental PCRA Petition in violation of the "hybrid representation" rule rendering it "defective" and the proceedings a legal nullity?
Did PCRA counsel…render ineffective assistance during the PCRA evidentiary hearing for multiple reasons?(Appellant's Pro Se Brief at 4).
Although Appellant raises additional claims to the ones listed above, they are essentially restatements of these issues, contending that the PCRA court erred by failing to recognize that PCRA counsel's supplemental petition was defective, a violation of the rule against hybrid representation, and failed to conform to the pleading requirements of the PCRA and Rules of Criminal Procedure, and by rejecting Appellant's claims and denying him PCRA relief. Accordingly, we need not address them separately.
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We do not give the same deference, however, to the court's legal conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). "A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts." Commonwealth v. R. Johnson, 600 Pa. 329, 356-357, 966 A.2d 523, 539 (2009).
Counsel's claims raised on Appellant's behalf concern allegations of trial counsel's effectiveness. Pennsylvania law presumes counsel has rendered effective assistance. Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his 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. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams, supra.
"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit…" Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). "Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective." Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [Kimball, supra], we held that a "criminal [appellant] alleging prejudice must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (some internal citations and quotation marks omitted).
In the first issue raised by counsel on Appellant's behalf, Appellant contends trial counsel was ineffective for failing to call Ellen Schmid, the proprietor of a beer distributor who had sold beer to Appellant before and after the incident, as a witness at trial. According to Appellant, Ms. Schmid could have provided evidence to support the defense theory that Appellant suffered from a diminished capacity due to significant intoxication that could have caused the jury to return a verdict of guilty of third, rather than first, degree murder. Appellant concludes trial counsel was ineffective on this basis, and this Court must grant relief. We disagree.
Our Supreme Court has explained:
[T]o prevail on a claim of ineffectiveness for failing to call a witness, a [petitioner] must prove, in addition to meeting the three Pierce requirements, that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the [witness'] testimony was so prejudicial as to have denied him a fair trial.Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008).
Instantly, the PCRA court reasoned:
Ellen Schmid testified that [Appellant] was a regular customer and she noticed no signs of intoxication on the two occasions he purchased beer on the day of the incident. It was reasonable for trial counsel to anticipate that such would be her testimony given potential penalties for selling alcohol to intoxicated persons. Further, pretrial discovery revealed that the police interviewed Ms. Schmid shortly after the incident and she made no reference to him appearing intoxicated. Finally, as argued by the Commonwealth, even if Ms. Schmid was available to testify at trial in support of [Appellant's] claim of intoxication or the amount of alcohol he had at his disposal prior to the shootings, the relevance of such testimony is doubtful. The court agrees. The witness observed [Appellant] nearly two hours before the shooting, but the jury was able to observe security camera footage of [Appellant] immediately before, during and after the crime. In the video, [Appellant] operated his vehicle in and out of traffic without incident, walked assertively in and out of the Pizza Hut where the shooting occurred, walked in and out of the Pizza Hut to shoot a second victim in the back in between taking shots at the homicide victim, and then calmly returned to his vehicle and drove away. Surely, the video evidence would have obliterated any inference that might have been drawn from Ms. Schmid's testimony, thus the court concludes with confidence that failure to call Ms. Schmid as a witness did
not affect the outcome of the trial.(PCRA Court Order and Opinion, filed 3/31/23, at 1-2).
The record supports the PCRA court's rationale. See Boyd, supra. In his Turner/Finley letter, PCRA counsel detailed his efforts to speak with Ms. Schmid, who was unwilling to speak with him until he obtained a subpoena compelling her presence. (Turner/Finley Letter at 6-8). Ms. Schmid testified that Appellant was not intoxicated on the day of the murder and, accordingly, her testimony would have contradicted his defense of voluntary intoxication. (N.T. PCRA Hearing, 5/4/23, at 43-50). Based upon the video evidence as introduced at trial, as well as Ms. Schmid's testimony at the PCRA hearing, Appellant cannot show that Ms. Schmid's testimony would have changed the outcome of the trial; therefore, Appellant cannot show prejudice. See Wright, supra. Therefore, Appellant was not entitled to PCRA relief on this claim. See Williams, supra; Kimball, supra.
In Appellant's second and third counseled issues, he contends that trial counsel was ineffective for reasons related to Appellant's alleged inability to speak and understand English. First, Appellant argues that trial counsel was ineffective for failing to seek the suppression of his statement to police. Second, Appellant maintains that trial counsel was ineffective for failing to secure the services of an interpreter for the purposes of trial preparation. Appellant concludes trial counsel rendered ineffective assistance on these grounds, and this Court must grant relief. We disagree.
This Court has explained:
The failure to file a suppression motion under some circumstances may be evidence of ineffective assistance of counsel. However, if the grounds underpinning that motion are without merit, counsel will not be deemed ineffective for failing to so move. [T]he defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable.Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa.Super. 2016), appeal denied, 641 Pa. 750, 169 A.3d 574 (2017).
Instantly, the PCRA court observed:
Regarding the second and third issues, Attorney Scarpitti testified that she had no difficulty communicating with [Appellant] in English. Further, she was privy to [Appellant's] video statement where he showed no difficulty communicating with the interviewing officers in English. She was also in possession of Commonwealth exhibits indicating [Appellant] confirmed he could read and write English and waived his Miranda rights. [Appellant's] testimony at the PCRA hearing that he has virtually no understanding of written English and signed official documents written in English merely because he was told to, was wholly [incredible]. Trial counsel testified credibly and consistently that she assessed [Appellant's] ability to understand English with him, and specifically asked him if he needed an interpreter for their meetings and he said "no." [Appellant's] speculation that provision of interpreter services during trial stands as proof "this court deemed it legally required as a protection of [Appellant's] rights" is not substantiated by the record. There is nothing to indicate the reason interpreter services were requested or provided at trial. It is not uncommon for this court to require interpreter services out of an abundance of caution. Attorney Scarpitti's explanation at the PCRA hearing, that
the pace and decorum of trial proceedings could make it helpful to have an interpreter present at trial is certainly reasonable. Based on the interviewing officer's testimony at trial and Attorney Scarpitti's testimony at the PCRA hearing, the court is confident that [Appellant] understood his Miranda rights and knowingly, voluntarily and intelligently waived them, therefore, there was no basis for suppressing [Appellant's] recorded statement.(PCRA Court Order and Opinion at 2-3).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The record supports the PCRA court's conclusion. See Boyd, supra. The written police report indicates that Appellant advised officers he could read, write, and speak English, and displayed no signs of intoxication. (N.T. PCRA Hearing at 35-36). At trial, Detective Hertel testified that Appellant's English was "very good, but he [did] have a slight broken English." (N.T. Trial, 9/18/19, at 17). At trial, the jurors viewed Appellant's statement to police and had the opportunity to observe, hear, and make determinations regarding his fluency for themselves.
Additionally, at the PCRA hearing, Appellant admitted that he never asked police for an interpreter and participated in the interview in English, and Attorney Scarpitti testified that Appellant had denied needing an interpreter. (See N.T. PCRA Hearing at 38-39, 59-61). Further, the Commonwealth presented the testimony of Alexandra Pearson, a friend of Ms. Stalheim, who testified that she also knew Appellant, conversed with him solely in English, and had always been able to converse with him in English without any impediment. (See id. at 54-57). As well, we give deference to the PCRA court's credibility determinations in favor of Attorney Scarpitti's testimony that Appellant denied needing an interpreter over Appellant's testimony that he did not understand English. See R. Johnson, supra; Abu-Jamal, supra.
Based on the above, there was no reason for trial counsel to seek suppression of Appellant's statements to the police, as the record reflected Appellant knowingly, voluntarily, and intelligently waived his Miranda rights, or an interpreter for trial preparation, as there was no evidence that an interpreter was needed. See Watley, supra. Therefore, Appellant is not entitled to PCRA relief on these claims, because they lack arguable merit. See Pierce, supra.
Turning to Appellant's pro se response to counsel's Turner/Finley letter, Appellant raises new claims of PCRA counsel's ineffectiveness. First, Appellant contends PCRA counsel was ineffective for incorporating Appellant's pro se PCRA petition by reference into his supplemental PCRA petition. Appellant maintains that this constituted a violation of the rule against hybrid representation, which rendered it defective and the proceedings a legal nullity. Appellant further argues that counsel's supplemental petition was defective on its face where it failed to conform to the general pleading requirements of the Rules of Criminal Procedure and the PCRA by failing to cite to relevant case authority in support of Appellant's claims. Appellant concludes PCRA counsel was ineffective on this basis, and this Court must grant relief. We disagree.
Appellant raises these claims of PCRA counsel's ineffectiveness for the first time on appeal. Nevertheless, this is Appellant's first opportunity to raise PCRA counsel's ineffectiveness following counsel's Turner/Finley letter. Thus, we may review these claims. See Commonwealth v. Bradley, ___ Pa. ___, 261 A.3d 381 (2021) (holding that PCRA petitioner may raise claims of PCRA counsel's ineffectiveness at first opportunity to do so, even if on appeal).
This Court has explained that counsel may not incorporate pro se claims by reference, "without any further explanation or elaboration upon the legal validity of such claims." Commonwealth v. S. Johnson, 179 A.3d 1153, 1157 (Pa.Super. 2018). See also Commonwealth v. Tedford, 598 Pa. 639, 656 n.4, 960 A.2d 1, 10 n.4 (2008) (stating: "[A] criminal defendant currently represented by counsel is not entitled to 'hybrid representation'-i.e., he cannot litigate certain issues pro se while counsel forwards other claims") (citations omitted); Commonwealth v. Markowitz, 32 A.3d 706, 713 n.5 (Pa.Super. 2011) (stating: "[T]he PCRA court is only permitted to address issues raised in a counseled petition") (citations omitted).
In S. Johnson, supra, PCRA counsel attempted to incorporate by reference multiple issues raised by the petitioner without further discussion or elaboration, while separately litigating one independent claim. See S. Johnson, supra at 1157. This Court determined that this constituted hybrid representation, observing it is "incumbent upon counsel to examine the merits of the pro se claims and determine whether those issues are worth pursuing in an amended petition." Id.
Here, our review of the record confirms that no hybrid representation occurred. Rather, PCRA counsel complied with the PCRA court's order to supplement Appellant's petition, and PCRA counsel filed a petition on the merits which preserved, explained, and expanded upon the majority of Appellant's issues. While the supplemental petition purported to incorporate by reference Appellant's pro se petition, and did not discuss all of the pro se claims raised by Appellant, counsel is permitted to use his judgment to determine whether a petitioner's pro se issues are "worth pursuing" in an amended petition. See id. at 1157. Significantly, Appellant cannot show that the quality of the supplemental PCRA petition prejudiced him. Indeed, Appellant received an evidentiary hearing on his claims at which several witnesses testified and provided him with the opportunity to further prove or develop his claims. Because Appellant cannot show that this claim has arguable merit or that he was prejudiced by counsel's supplemental petition, Appellant is not entitled to relief on this claim of PCRA counsel's ineffectiveness. See Kimball, supra.
Counsel's supplemental petition did not discuss Appellant's pro se claims that trial counsel was ineffective for failing to call an expert witness, or to investigate and call Brandon Marioth and Ashley DiCarlo as fact witnesses.
In Appellant's next pro se issue, Appellant raises several claims of PCRA counsel's alleged ineffectiveness at the evidentiary hearing. First, he contends that PCRA counsel was ineffective for failing to investigate and call as witnesses Brandon Marioth and Ashley DiCarlo, who would allegedly have provided evidence in support of Appellant's voluntary intoxication defense, and to obtain and play a recorded phone conversation with Mr. Marioth. Appellant further avers that he listed these witnesses on his "certification of intended witnesses" list. Appellant concludes PCRA counsel was ineffective on this basis, and we must grant relief. We disagree.
Initially, we note that while Appellant stated that he intended to call these witnesses, he failed to aver in either his original petition or his response to counsel's Turner/Finley letter that the witnesses were available and willing to testify for the defense. See Wright, supra. Further, at the PCRA hearing, trial counsel testified that her recollection of the Marioth call was that it was "far more harmful to [Appellant's] case than it was helpful." (N.T. PCRA Hearing at 69). At the hearing, the following exchange took place:
[Trial counsel]: As best I remember, [Appellant] admitted to some fairly unfortunate things during that. He wasn't very sympathetic in it. I don't believe that he appeared to be drunk in it, just very angry. And I didn't think that it was going to help his case.
[Commonwealth]: …And specifically in the last paragraph, [Marioth] asks [Appellant], quote, what did she do? And [Appellant replied, quote, she pissed me off.
[Trial counsel]: Right.
[Commonwealth]: Then later on, [Marioth] asked [Appellant] if he shot her, or someone else. And [Appellant] replied quote, I shoot both everybody there.
[Trial counsel]: Yes.
[Commonwealth]: …and then he also, when asked if he shot her in the head, [Appellant] stated no, but, quote, I
wish I could.
[Trial counsel]: Yes.
[Commonwealth]: Then he was asked, you wish you could've what? And [Appellant] replied, he wish[ed] he would have killed her. Is that what you're referring to when you're talking about statements that would be or might be harmful to [Appellant's] case on this video, or on this recording?
[Trial counsel]: Yes; those kinds of statements.(Id. at 69-70). Here, the record reflects that trial counsel had a reasonable and strategic basis for not playing the tape, namely, Appellant's damaging statements and admissions during the conversation, as well as the fact that he did not sound intoxicated on the call. See Kimball, supra. Thus, Appellant cannot prevail upon this claim. See id.
Next, Appellant contends that PCRA counsel was ineffective for failing to obtain and play the interrogation video to support his claim regarding his level of intoxication, alleged Miranda violations, and lack of a Spanish interpreter during police questioning, and for failing to seek suppression of his statements made during questioning. Appellant contends that the recordings, when considered collectively with other factors such as his low IQ score and reading test results, and lack of a Spanish interpreter during questioning, all provided reasonable grounds for trial counsel to seek suppression. We disagree.
"In determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney that the defendant asserts was ineffective did, in fact, render ineffective assistance of counsel. If that attorney was effective, then subsequent counsel cannot be deemed ineffective for failing to raise the underlying issue." Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa.Super. 2010).
Here, as we have previously discussed, the record does not support Appellant's claim of intoxication, and the tape would not have entitled him to suppression of his statements. The record reflects that trial counsel chose to play a tape of Appellant's statement to the police for the jury. (N.T. Trial, 9/18/19, at 30-37). Detective Hertel testified and was cross-examined regarding his interview of Appellant and his observations of Appellant's demeanor, namely, that Appellant did not appear intoxicated, and was able to communicate in English. (See id.) On the contrary, Appellant testified that he was intoxicated on the day of the murder. (See id. at 44). The jury was able to view both Appellant's demeanor on the tape and his demeanor in court, as well as the testimony of Detective Hertel, the tape, and Appellant's own testimony, and did not credit Appellant's claim of intoxication or failure to understand detectives or the waiver forms.
Other evidence introduced at trial supported the jury's conclusion that Appellant was not intoxicated at the time of the murder or interrogation, including his ability to drive from Youngstown, Ohio to Erie, Pennsylvania without incident, purchase beer and chocolates, write a note and leave it on the victim's car, text the victim, drive back and forth to her home to retrieve his gun, operate a vehicle in traffic, and react quickly to shoot Ms. Stalheim and pursue Ms. Furman, including security camera footage of the shooting. (See N.T. Trial, 9/17/19, at 21-49, 160-169; 9/18/19, at 19-20, 23-24, 34-37). Further, the trial court observed that on the tape, Appellant "appeared alert and oriented, and demonstrated a fairly clear recollection of the day's events." (Trial Court Opinion, filed 4/29/21, citing N.T. Trial, 9/18/19, Defense Ex. 1).
It is unclear how the tape would have entitled Appellant to suppression of his statements. There was more than sufficient evidence for the jury to conclude that Appellant was not intoxicated at the time of the murder or his interrogation. Beyond Appellant's self-serving claims, there is simply no evidence in the record of a Miranda violation. Detective Hertel testified that he brought Appellant into the station, completed the Miranda form with Appellant, and advised him that they would be taking part in a recorded interview. (N.T. Trial, 9/18/19, at 16-17). Appellant agreed to participate in the interview, signed the waiver form, had no discernable issues speaking with the detective, and appeared alert and sober. (See id.). We reiterate that trial counsel was not ineffective for failing to pursue a suppression motion based on Appellant's alleged intoxication. Therefore, Appellant's layered claim of PCRA counsel's ineffectiveness necessarily fails. See Burkett, supra.
Next, Appellant contends that PCRA counsel provided ineffective assistance by failing to subpoena and introduce attorney visitor logs for the Erie County Prison to support his claim that trial counsel had only visited him once during trial preparation. At the evidentiary hearing, trial counsel testified that she visited Appellant seven times, but Appellant contends that trial counsel visited only once and refused to answer his numerous letters. Indeed, Appellant baldly asserts that trial counsel lied to the PCRA court, and that PCRA counsel was unprepared to rebut and impeach her testimony with visitor logs. Appellant concludes PCRA counsel was ineffective on this ground, and we must grant relief. We disagree.
Instantly, even if PCRA counsel procured the visitor logs and even if they confirmed that trial counsel visited Appellant only once, Appellant has failed to show how he was prejudiced by trial counsel's alleged lack of preparation. See Kimball, supra. As Appellant cannot prove prejudice related to trial counsel's trial preparation, he cannot succeed on his layered claim of PCRA counsel's ineffectiveness. See Burkett, supra.
Appellant next argues that PCRA counsel was ineffective for failing to obtain additional proof supporting Appellant's claims that he was not fluent in English. Appellant contends that PCRA counsel was ineffective for failing to secure affidavits from and/or call as witnesses inmates who assisted Appellant with his pro se pleadings, research, or acted as Spanish interpreters for Appellant. Additionally, Appellant maintains that PCRA counsel was ineffective for failing to obtain and introduce Pennsylvania Department of Corrections records demonstrating that Appellant had a TABE reading score of 0.0 and an IQ of 78. Appellant relies on affidavits from three fellow prisoners who asserted that Appellant could not speak or understand English, as well as documents from SCI-Forest indicating that his TABE reading score was 0.0 and his IQ was 78. As a result of these failures, Appellant insists that PCRA counsel was unprepared to rebut trial counsel's testimony, and accordingly, provided ineffective assistance of counsel. We disagree.
The TABE is the Test of Adult Basic Education. See https://tabetest.com/ (last visited Aug. 6, 2024).
Instantly, we have already discussed above the plethora of evidence at trial indicating that Appellant was able to understand and converse in English, as well as the jury's ability to view Appellant's statement to police on video. Further, we reiterate that trial counsel testified at the evidentiary hearing that Appellant had no issues communicating with her in English, and the PCRA court credited that testimony. (See N.T. PCRA Hearing, at 59-70). See also R. Johnson, supra. Additionally, Alexandra Pearson testified at the PCRA hearing that at the time she had known Appellant, they solely communicated in English and had never had an issue doing so. (See N.T. PCRA Hearing at 53-57). Under these circumstances, we cannot say that Appellant suffered prejudice from PCRA counsel's failure to obtain and introduce the proffered evidence at the PCRA hearing. See Kimball, supra.
Following our independent review of the record, we agree with counsel that the appeal is frivolous. See Turner, supra. Accordingly, we affirm the PCRA court's order denying relief and grant counsel's petition to withdraw.
Order affirmed; counsel's petition to withdraw is granted.
Judgment Entered.