Opinion
J-S35038-16 No. 543 EDA 2013
06-08-2016
COMMONWEALTH OF PENNSYLVANIA v. RONALD L. SMITH, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 20, 2000 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-1018353-1992 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Ronald L. Smith ("Smith") appeals, pro se, from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
The PCRA court set forth the relevant factual and procedural history in its Opinion, which we adopt herein for purposes of this appeal. See PCRA Court Opinion, 12/3/14, at 1-3.
On appeal, Smith raises the following issues for our review:
1. Whether [direct appeal] counsel was ineffective for failure to assert [that the] trial court's finding of facts violated both Pennsylvania and federal constitutional search and seizure [sic] when trial judge['s] finding of facts were [sic] contrary to clearly established law[,] when homicide detectives illegally and forcibly entered property without consent of any resident that leased the unit []?
2. Whether trial counsel was ineffective for failing to object to the trial court's charges to the jury on accomplice liability and
first[-]degree murder that were prejudicially [sic] and erroneous[,] and violated due process of the law[,] and permitted conviction on less than proof of every elements [sic] of the crime charged beyond a reasonable doubt []?Brief for Appellant at 4 (capitalization omitted, issues renumbered for ease of disposition).
3. Whether trial counsel was ineffective for failing to object to the trial court's charges to the jury on criminal conspiracy that wer[e] prejudicial[] and erroneous[,] and violated due process of the law[,] and permitted conviction on less than proof of every element[] of the crime charged beyond a reasonable doubt []?
4. Whether the trial court erred in denying [Smith's] 1997 PCRA Petition without holding an evidentiary hearing?
5. Whether [Smith's] first PCRA was uncounseled when PCRA counsel denied [Smith] effective assistance of counsel[,] violated [Smith's] due process and equal protection of the law [sic]?
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.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
In his first issue, Smith contends that the PCRA court erred by finding no merit to his claim that direct appeal counsel was ineffective for failing to assert that the trial court's "findings of fact violated both Pennsylvania and [f]ederal Constitutional search and seizure [law] when homicide detectives forcibly and illegally entered [Smith's] property without consent, but through [the consent of the] apartment manager." Brief for Appellant at 41. Smith asserts that the trial court improperly found that the apartment manager had lawfully consented to a search by homicide detectives of Smith's apartment. Id. Smith claims that, when the detectives arrived at the apartment, none of the tenants were there to provide consent to a search of the apartment. Id. at 42. Smith argues that the testimony of Secouyah West, Smith's girlfriend, constitutes fruit of the poisonous tree because her consent followed the initial unlawful intrusion. Id. at 44. Smith contends that, because the initial entry was unlawful, the seizure of evidence based on a subsequently obtained warrant was also fruit of the poisonous tree. Id. at 45.
In his appellate brief, Smith also claims that trial and PCRA counsel were ineffective for failing to raise this issue. Brief for Appellant at 47. However, Smith's claim regarding trial counsel's ineffectiveness was not raised in his Amended PCRA Petition filed by his PCRA counsel, Timothy Golden, Esquire ("Attorney Golden"); therefore, the claim was not preserved for our review. As to PCRA counsel, our review discloses that this issue was raised in the Amended Petition filed by Attorney Golden.
The PCRA court set forth the relevant law, thoroughly addressed Smith's first issue, and determined that the issue was waived and otherwise lacked merit. See PCRA Court Opinion, 12/3/14, at 4-9. We agree with the reasoning of the PCRA court, which is supported by the evidence of record and is free of legal error, and affirm on this basis as to Smith's first issue. See id.
As Smith's second and third issues are related, we will address them together. In his second issue, Smith contends that trial counsel was ineffective because he failed to (1) request the trial court to instruct the jury that the Commonwealth was required to prove that Smith had a specific intent to kill in order to convict him of first-degree murder, and (2) object to the improper instruction provided by the trial court. Brief for Appellant at 17. Smith asserts that the trial court instructed the jury on a general theory of accomplice liability, "which annoyingly transformed into a defective murder in the first degree instruction." Id. Smith argues that the trial court's instruction was so egregious that it denied Smith his state and federal constitutional rights to due process. Id. at 21. Smith contends that this issue is not waived because "this is [his] first opportunity [] to raise this issue due to hybrid[] representation during the litigation of his first PCRA [P]etition." Id. at 27.
In his third issue, Smith contends that trial counsel was ineffective because he failed to object to the trial court's jury instruction regarding criminal conspiracy, "which transformed into a defective murder in the first degree instruction." Id. at 29. Smith asserts that the instruction provided by the trial court was "general, ambiguous and confusing, and devoid of legal definition of the elements of each offense charged." Id. at 32. Smith further claims that all subsequent counsel were ineffective for not raising these issues. Id. at 17, 29.
The PCRA court set forth the relevant law, addressed Smith's second and third issues, and determined that these issues were waived, as they were not raised in the Amended PCRA Petition filed by Attorney Golden. See PCRA Court Opinion, 12/3/14, at 9-10. We agree with the sound reasoning of the PCRA court, which is supported by the evidence of record and is free of legal error, and affirm on this basis as to Smith's second and third issues. See id.
Although these issues were raised by Smith in his pro se Petition, they were not raised in the Amended Petition filed by Attorney Golden. However, as Smith was represented by counsel, the PCRA court was not required to consider the issues that Smith had raised in his pro se Petition. See Commonwealth v. Pursell , 724 A.2d 293, 302 (Pa. 1999) (holding that "[w]e will not require courts considering PCRA petitions to struggle through the pro se filings of defendants when qualified counsel represents those defendants"); see also Commonwealth v. Willis , 29 A.3d 393, 400 (Pa. Super. 2011) (holding that the PCRA court had erred in permitting dual representation during the disposition of the petitioner's PCRA petition).
In his fourth issue, Smith contends that the PCRA court erred by dismissing the Amended PCRA Petition without conducting a hearing. Brief for Appellant at 48. Smith asserts that he requested an evidentiary hearing, but the PCRA court did not conduct a hearing prior to dismissing the Amended Petition. Id. at 49. Smith claims that the PCRA court was required to conduct an evidentiary hearing because Smith's ineffectiveness claims raised issues of material fact. Id.
Our review of the PCRA court's docket, as well as the certified record, discloses no request for an evidentiary hearing filed by Smith.
"There is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary." Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008) (citation omitted); see also Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing. See Commonwealth v. Jordan , 772 A.2d 1011, 1014 (Pa. Super. 2001).
Here, Smith has failed to demonstrate that any of the claims presented to the PCRA court in the Amended Petition raised a genuine issue concerning any material fact. Accordingly, we discern no error by the PCRA court in dismissing the Amended Petition without a hearing.
In his final issue, Smith contends that, following the filing of his pro se PCRA Petition, the PCRA court appointed Attorney Golden as PCRA counsel. Brief for Appellant at 9. Smith asserts that Attorney Golden thereafter filed a "boiler-plate [A]mended [P]etition raising five [] different issues with no supporting facts and law, and deliberately omitted [the claims that Smith had raised in his pro se Petition]." Id. Smith claims that he instructed Attorney Golden to supplement the Amended Petition to include the issues raised by Smith in his pro se Petition. Id. at 10. Smith further argues that Attorney Golden failed to respond to the PCRA court's Notice of its intent to dismiss the Petition, despite Smith's request that he do so. Id. at 10-11. Smith contends that Attorney Golden never filed any petition asserting that Smith's pro se claims were without merit. Id. at 13. Smith asserts that, although he filed a pro se response to the PCRA court's Notice of its intent to dismiss the Amended Petition, the PCRA court dismissed the Amended Petition, without considering the issues raised in Smith's pro se Petition. Id. at 11. Smith claims that Attorney Golden's actions should be regarded as abandonment of counsel, in violation of his right to effective counsel in the pursuit of his first PCRA Petition. Id. Smith argues that, as a result of Attorney Golden's actions, his first PCRA Petition was uncounseled, and the PCRA court erred by dismissing it. Id. at 13.
Contrary to Smith's assertions otherwise, our review of the PCRA court docket reveals no correspondence from Smith to the PCRA court during the time period between the PCRA court's May 10, 2000 Notice of its intent to dismiss the Amended Petition and its June 20, 2000 Order dismissing the Amended Petition. Similarly, our review of the certified record discloses no correspondence from Smith to Attorney Golden during this time period. The certified record contains only one piece of correspondence from Smith to Attorney Golden, dated January 4, 1999, wherein Smith indicated that he "liked most of the issues" that Attorney Golden had raised in the Amended Petition, but he requested that Attorney Golden expand one of the issues, and file a memorandum of law to accompany the Amended Petition. See Smith Letter, 1/4/99, at 1. Nevertheless, Smith has attached to his brief numerous letters that he purportedly sent to Attorney Golden and the PCRA court during this time fame (including a type-written letter dated May 2001 that was included in the certified record, but which, as attached to Smith's brief, had been altered by a hand-written notation to indicate May 2000). However, because these items are not part of the certified record, we are unable to consider them. See Ford , 44 A.3d at 1194 (providing that "our review is limited to the findings of the PCRA court and the evidence of record").
Smith has not raised the issue of Attorney Golden's ineffectiveness/abandonment before the PCRA court; therefore, the issue is not properly before this Court. See Commonwealth v. Henkel , 90 A.3d 16, 21-30 (Pa. Super. 2014) (providing a thorough discussion of this issue, and concluding that, under current Supreme Court precedent, a PCRA petitioner cannot assert claims of PCRA counsel ineffectiveness for the first time on appeal).
Having reviewed the evidence in the light most favorable to the prevailing party at the PCRA level, and having determined that the PCRA court's rulings are supported by evidence of record and are free of legal error, we affirm the PCRA court's Order dismissing Smith's amended PCRA Petition. See Ford , 44 A.3d at 1194.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/8/2016
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