Opinion
J-S51025-18 No. 2973 EDA 2017
09-25-2018
COMMONWEALTH OF PENNSYLVANIA v. SEAN SULLIVAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 15, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014636-2011 BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY NICHOLS, J.:
Pro se Appellant Sean Sullivan appeals from the order denying his first Post Conviction Relief Act (PCRA) petition. He raises several claims of PCRA court error and ineffective assistance of PCRA counsel. We affirm.
We state the facts as set forth by this Court on direct appeal:
On June 21, 2011, while incarcerated for murder at the Curran-Fromhold Correctional Facility, [Appellant] got into a dispute with the inmates in Cell 15, Aaron Young and Richard Gyton. [Appellant] threatened to settle the dispute later that night. [Appellant] began to recruit co-conspirators, including co-defendant Donte Jones, to assist him. Later that day, [Appellant], Jones and two other inmates went to Cell 15. [Appellant] had an improvised knife sticking out of his pants. Prison guards ultimately dispersed the group.
Over the next hour, [Appellant] and his friends huddled together in the prison yard, while the Cell 15 inmates played basketball and then returned to their cell. A few minutes later, a fight broke out
among inmates waiting to use the phone. Taking advantage of the confusion, [Appellant] and two of his cohorts ran to Cell 15 and stabbed Gyton and Young multiple times with the improvised knives. A friend of Gyton and Young heard the screams and ran towards their cell, where one of [Appellant's] friends attacked him. [Appellant] and company ran towards the day room, where they ambushed another prisoner, Earl Bostic, stabbing him nine times and killing him. Authorities later recovered [Appellant's] DNA on one of the weapons used to kill Bostic.Commonwealth v. Sullivan , 1905 EDA 2013, 1-2 (Pa. Super. Apr. 17, 2015) (unpublished mem.). The Court affirmed the judgment of sentence, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on December 8, 2015. Commonwealth v. Sullivan , 129 A.3d 1243 (Pa. 2015).
Following a bench trial, the trial court convicted [Appellant] of murder in the third degree, conspiracy to commit homicide, possession of an instrument of crime, possession of a prohibited offensive weapon, and aggravated assault. The trial court acquitted [Appellant] of various charges stemming from the assaults on the other inmates. On May 10, 2013, based upon [Appellant's] prior murder conviction, the trial court sentenced him to a second mandatory life sentence for murder in the third degree, with concurrent sentences on the remaining charges.
On October 3, 2016, Appellant filed his first pro se PCRA petition. The PCRA court appointed counsel, who filed a Turner /Finley letter.
See Commonwealth v. Wilson , 911 A.2d 942, 944 (Pa. Super. 2006) (recognizing that under the "prisoner mailbox rule" a document is deemed filed when placed in the hands of prison authorities for mailing). As discussed below, Appellant's petition did not raise the claim that trial counsel was ineffective by not introducing character or prior bad acts evidence regarding the victim.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
The court issued a Pa.R.Crim.P. 907 notice, and Appellant filed a pro se response in opposition, challenging PCRA counsel's failure to advocate the claims in Appellant's petition. Appellant's Resp. to Rule 907 Notice, 6/27/17. On August 15, 2017, the PCRA court granted counsel's petition to withdraw and dismissed Appellant's PCRA petition. Appellant timely appealed.
Appellant raises the following issues:
1. Did the post-conviction court err in [its] factual findings and conclusion[s] of law when such court denied Appellant an evidentiary hearing based on ineffective assistance of counsel when counsel failed to properly present the issue of "bolstering the testimony of a Commonwealth witness" which had a better chance of success on direct appeal as such a claim, when proven, is inadmissible in the courts of the Commonwealth of Pennsylvania and is cause for [reversible] error?
2. Did the post-conviction court (PCRA) err in [its] factual findings and conclusion[s] of law when it adopted the conclusion of appointed counsel['s] findings that read more like an amicus curie brief rather than an adversarial brief which rendered such appointed constructive denial of assistance of counsel thereby violating Appellant's Sixth Amendment right to effective assistance of counsel during a collateral attack in violation of Appellant's due process?
3. Did the post-conviction court (PCRA) abuse [its] discretion in violation of Appellant's due process of law rendering the trial unfair when it allowed hearsay testimony that was not given not for the truth of the matter but for the purpose of prejudicing Appellant when it allowed the testimony of other crimes to permeate the trial and for which Appellant was never charged?Appellant's Brief at iii.
4. Did the post-conviction court (PCRA) err [and] abuse [its] discretion in [its] factual findings and conclusions of law when said court failed to hold an evidentiary hearing based on ineffective assistance of counsel when counsel failed to present character evidence of the victim that would have shown the victim had a history of assaultive behavior and bullying which would have justified his being assaulted by others as they feared him and not by Appellant as [another person's] DNA was present on the weapon used against victim and not Appelant's DNA?
In support of Appellant's first issue, he argues that trial counsel was ineffective by not objecting when a police officer purportedly bolstered the testimony of Gyton. By way of background, this Court addressed the underlying issue on direct appeal:
[Appellant] first contends that the trial court erred when it permitted the Commonwealth to improperly bolster the credibility of inmate Richard Gyton, who was stabbed by [Appellant] in the prison melee. Prior to trial, Gyton gave a statement to police from his hospital bed, in which he implicated [Appellant] in the stabbing of Bostic. At trial, Gyton testified, contrary to his prior statement, that he did not see who stabbed Bostic. Although Guyton claimed that he was under the influence of medication at the time the prior statement was made, Detective Burke testified on cross-examination that "[Gyton] spoke clearly. He understood what I was asking him. He was very forthcoming." N.T., Trial, 2/28/13 at 69.
Preliminarily, we note that our review of the trial transcript reveals defense counsel did not raise a contemporaneous objection to
Detective Burke's allegedly improper testimony. On this basis, we find [Appellant's] claim waived. . . .Sullivan , 1905 EDA 2013, at 3-5.
Nonetheless, even if we were to examine this claim, we would not grant relief. . . .
We would find that it was properly within the trial court's sound discretion to admit testimony that Gyton was clear and forthcoming as falling within the realm of common knowledge, experience and understanding. Clearly, Detective Burke's testimony as to Gyton's demeanor during questioning was based upon his personal observation. More importantly, we do not find Detective Burke's characterization impermissibly intruded upon the duty of the jury to determine credibility of witnesses, but rather provided relevant context to Gyton's state of mind and demeanor at the time he gave his prior statement. Therefore, [Appellant's] allegation of error would merit no relief.
Here, Appellant argues PCRA counsel was ineffective by not raising trial counsel's alleged ineffectiveness for failing to object to Detective Burke's testimony. Appellant's Brief at 6. In Appellant's view, Detective Burke "usurped the truth-determining function of the factfinder," by testifying to the "truthfulness" of Gyton's inculpatory statement. Id. at 5-6.
Our standard of review is well-settled:
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).
To warrant relief based on an ineffectiveness claim, a petitioner must show that such ineffectiveness "in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Jones , 912 A.2d 268, 278 (Pa. 2006); accord 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed to have rendered effective assistance. Commonwealth v. Weiss , 81 A.3d 767, 783 (Pa. 2013).
To overcome the presumption, the defendant has to satisfy the performance and prejudice test set forth in Strickland v. Washington , 466 U.S. 668 (1984). The Pennsylvania Supreme Court has applied the Strickland test by examining three elements; specifically, whether (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Bennett , 57 A.3d 1185, 1195-96 (Pa. 2012). If a claim fails under any necessary element of the Strickland test, the court may proceed to that element first. Id. Counsel will not be deemed ineffective for failing to raise a meritless claim. Jones , 912 A.2d at 278.
For example, in Commonwealth v. Collins , 888 A.2d 564 (Pa. 2005), the defendant raised a claim that trial counsel was ineffective for failing to raise a particular Pennsylvania due process claim, the details of which are unnecessary to restate here. Id. at 574. On PCRA appeal, the defendant reframed the due process claim as a violation of the federal constitution. Id. The Court, in resolving the issue, stated "the factors that we considered on direct appeal are the same as the factors [the defendant] now asks us to consider on collateral review." Id. at 575. After evaluating an additional federal factor that provided no relief to the defendant, the Court held that "for the reasons discussed on direct appeal, [the defendant] cannot establish that this claim has arguable merit, and this claim of ineffectiveness fails." Id.
Here, Appellant raised the underlying claim on direct appeal, which the prior Court addressed on the merits, assuming no waiver of the failure to object. Sullivan , 1905 EDA 2013, at 3-5. We are bound by that alternative holding. See Commonwealth v. Reed , 971 A.2d 1216, 1220 (Pa. 2009) (holding that Superior Court's prior holding of waiver and alternative holding on the merits was law of the case). Because Appellant cannot establish that his underlying claim has arguable merit, he cannot succeed on his ineffectiveness claim. See Jones , 912 A.2d at 278; Collins , 888 A.2d at 575; see also Bennett , 57 A.3d at 1195-96.
Second, Appellant challenges PCRA counsel's advocacy. Specifically, Appellant contends that PCRA counsel's Turner /Finley brief was insufficiently adversarial, such that his Sixth Amendment right to counsel was violated. Appellant's Brief at 6-7.
Initially, Appellant's right to PCRA counsel is rule-based. See Pa.R.Crim.P. 904. "[T]here is no Sixth Amendment right or due process right to counsel during collateral review." Commonwealth v. Figueroa , 29 A.3d 1177, 1180 n.6 (Pa. Super. 2011) (citations omitted). Further, counsel, in a Turner /Finley brief, must argue against the client's interests and articulate "why the client's claims have no merit." Commonwealth v. Wrecks , 931 A.2d 717, 722 (Pa. Super. 2007). Thus, Appellant is not entitled to relief because PCRA counsel, when filing a Turner /Finley brief, was obligated to argue against Appellant. See Wrecks , 931 A.2d at 722.
For his third claim, Appellant contends that the trial court erred in two separate occasions by permitting testimony. First, Appellant argues the trial court erred by overruling his counsel's objection to the Commonwealth's question to a witness "about how drugs were brought in the jail." Appellant's Brief at 9. He faults the court for hearing the testimony and then purportedly instructing itself—it was a bench trial—to disregard the testimony. Id. Second, Appellant contends the court erred by overruling his counsel's objection to a question that elicited hearsay testimony from a police officer. Id. at 10. We note Appellant did not explain why he could not have raised these issues on direct appeal.
In Commonwealth v. Wholaver , 177 A.3d 136 (Pa. 2018), the defendant raised a claim "that the trial court erred by overruling trial counsel's objection" to certain evidence. Id. at 179. The Pennsylvania Supreme Court held that the defendant's claim was "waived for purposes of the PCRA because he could have raised the issue on direct appeal. 42 Pa.C.S. § 9544(b)." Id. Here, the Wholaver Court's reasoning applies equally here: Appellant's third claim is waived because he could have raised it on direct appeal. See id.
In support of his last issue, Appellant argues that trial counsel was ineffective by not presenting character evidence of the victim, including the victim's prior convictions for assault to corroborate the victim's purportedly violent character. Appellant's Brief at 12.
The PCRA court resolved the issue as follows:
This court's review of the record belied [Appellant's] claim that trial counsel failed to elicit evidence relating to prison conditions and the victim's violent proclivities and physical size. [Appellant's counsel and counsel for his co-defendants] established that [the prison in question] is a violent place where stabbings frequently occur, that the victim as very big and tough and likely sold drugs, guards were ineffectual in stopping and preventing violence, inmates had to fend for themselves, and . . . that the victim used violence against [Appellant] before [Appellant and others] attacked the victim.PCRA Ct. Op., 9/20/17, at 8 (citations to trial record omitted).
We agree with the PCRA court's ruling. Moreover, to the extent Appellant is specifically arguing about the victim's prior convictions for assault, he never raised that argument before the PCRA court and has therefore waived it. See Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Accordingly, having discerned no error, we affirm. See Ford , 44 A.3d at 1194.
Appellant also filed a supplemental appellate brief, raising, for the first time, that trial counsel was ineffective for failing to call Alvin Lloyd as a witness. That claim is waived because Appellant did not raise it in his PCRA petition. See Pa.R.A.P. 302(a).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/25/18
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