Opinion
215 WDA 2024 J-S29027-24
10-17-2024
COMMONWEALTH OF PENNSYLVANIA v. JOSHUA JEROME WALKER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered January 19, 2024 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000691-2015
BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.
MEMORANDUM
KING, J.
Appellant, Joshua Jerome Walker, appeals from the order entered in the Erie County Court of Common Pleas, which dismissed his petition filed under the Post Conviction Relief Act ("PCRA"). We affirm the order and deny
Appellant's pro se application for relief that he subsequently filed in this Court.
A prior panel of this Court set forth the relevant facts and procedural history of this appeal as follows:
On October 6, 2014, Appellant was charged with criminal homicide, aggravated assault, robbery, theft, and possession of an instrument of crime in connection with the killing of David McLendon (Victim) on August 6, 2014. These charges were tried to a jury from May 23, 2016, to May 27, 2016.
At trial, the Commonwealth's evidence showed that Victim was found dead at Delaware and Ottawa Avenues in Erie,
Pennsylvania shortly before 6:00 a.m. on August 6, 2014 with his head and upper body covered in blood. The forensic pathologist who performed the autopsy on Victim testified that Victim had suffered 31 head wounds and opined that Victim was killed by blunt force trauma to the head. The pathologist did not make any determination of the time of death.
Pamela Lutz, who lived in the 1000 block of Delaware Avenue, near the Delaware and Ottawa intersection, testified that between 1:00 a.m. and 1:30 a.m. on August 6, she heard loud voices that sounded like two men yelling and arguing or fighting. Lutz testified that she then walked to the front of her house and looked out the window and that a few minutes later, she saw a silhouette of what appeared to be a man moving around hunched over like he was looking for something, and then getting into an SUV and driving away very quickly heading north. A surveillance camera on the next block of Delaware Avenue on the north side of Ottawa Avenue showed a Chevrolet Trailblazer SUV driving by northbound at 1:03 a.m. that morning and no other SUV driving north at any time between 12:20 a.m. and 2:20 a.m.
The Commonwealth's evidence also showed that Appellant was with Victim on the night of August 5 to 6, 2014 and was driving his then-girlfriend Shawneah Parraway's Chevrolet Trailblazer SUV that night. Appellant and Victim went to several bars and left the last of these bars, the Knotty Pine, together in Parraway's SUV between 12:00 a.m. and 12:30 a.m. Appellant, who was living with Parraway at the time, did not return to Parraway's apartment until around 3:00 a.m. and when he arrived there, he was wearing different clothes than he had been wearing when he had left on August 5.
When Parraway drove her SUV to take her daughter to daycare around 8:00 a.m. on August 6, she saw a red substance on the passenger side window that she thought was ketchup. Parraway got angry at Appellant for bringing her vehicle home dirty and told him to clean it up and Appellant took the SUV to a car wash that morning. Later that day, the police asked Parraway if they could examine the SUV and she consented. In this examination, the police
found spots on the back of the driver's seat, the floor mat in front of the driver's seat, and the rear passenger seat of the SUV that tested positive for blood. DNA testing of samples from those spots showed the presence of Victim's DNA.
At the close of the Commonwealth's case, the trial court dismissed the robbery and theft charges. Appellant testified in his own defense and denied that he killed Victim. Appellant testified that after he and Victim left the Knotty Pine, they went to another bar and that he dropped Victim off at Vulcan Street, rather than at Victim's home because Victim said that he had to meet someone. Appellant testified that after he dropped Victim off, he went with a woman to his cousin Ja'Rell Fleming's house and that he changed his clothes because he didn't want to smell of perfume from having sex with the woman when he came home to Parraway. Appellant also called as a witness a friend who testified that Victim sometimes drove Parraway's SUV when he was with Appellant and that on one of those occasions, Victim had a cut on his hand from a broken bottle thrown in a fight.
The trial court instructed the jury on both first-degree murder and third-degree murder with respect to the criminal homicide charge and on the offenses of aggravated assault and possession of an instrument of crime. On May 27, 2016, the jury convicted Appellant of third-degree murder and aggravated assault and acquitted him of possession of an instrument of crime. On August 24, 2016, the trial court sentenced Appellant to 20 to 40 years' imprisonment for the third-degree murder conviction and imposed no penalty for the aggravated assault conviction because it merged with the third-degree murder conviction.
Appellant timely appealed and raised two issues in that appeal, whether the trial court erred in failing to instruct the jury on voluntary manslaughter and whether it had erred in permitting the prosecutor to argue that money was a motive for the murder. On September 18, 2017, this Court affirmed Appellant's judgment of sentence on the ground that both of these issues were waived because Appellant did not object to the failure to instruct the jury on voluntary manslaughter or object to the Commonwealth's closing
argument. Appellant did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.
On October 12, 2018, Appellant filed a timely pro se first PCRA petition, in which he asserted 24 grounds for relief. The trial court appointed PCRA counsel[, Attorney Hathaway,] for Appellant and granted PCRA counsel leave to file a supplemental PCRA petition. On February 6, 2019, PCRA counsel filed a document entitled as a "Supplement" to Appellant's pro se PCRA petition in which he incorporated by reference Appellant's pro se PCRA petition and also set forth additional argument that related to only some of the grounds for relief listed in the pro se petition.
On December 20, 2019, the trial court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss this PCRA petition without a hearing. In this Rule 907 notice, the [PCRA] court opined that all claims other than three claims that it concluded were specifically discussed in PCRA counsel's supplemental PCRA petition were waived. The [PCRA] court, however, not only discussed those three issues and held that they did not state meritorious claims for PCRA relief, … but also set forth the reasons that it considered all of Appellant's other claims for PCRA relief to be without merit. Appellant's PCRA counsel filed no response to the Rule 907 notice and the [PCRA] court entered an order on January 13, 2020 dismissing Appellant's PCRA petition.Commonwealth v. Walker, No. 207 WDA 2020, unpublished memorandum at 1-6 (Pa.Super. filed April 8, 2022) (internal citations and footnotes omitted).
The PCRA court opinion recounted the subsequent procedural history as follows:
On April 8, 2022, the Superior Court … affirmed this [c]ourt's dismissal of 23 of the 24 PCRA claims. The Superior Court vacated the dismissal of the claim of ineffective assistance of trial counsel[, Attorney Del Duca,] for failure to call [Lily] Freeman as an alibi witness at trial
and remanded the matter for further proceedings on that claim. The Superior Court directed the [c]ourt to allow [Appellant] to provide a witness certification with respect to Freeman and any witness other than [Appellant] whom [Appellant] would call at a hearing and directed the [c]ourt to hold a hearing if [Appellant] provided a witness certification. The purpose of a hearing was to resolve the factual issue [of] whether trial counsel had a reasonable basis for the decision not to call Freeman as an alibi witness.
On April 14, 2022, the [c]ourt directed PCRA counsel to file within thirty (30) days a sufficient witness certification of Freeman and of any other witness other than himself whom he would call at a hearing on the IAC claim. On May 20, 2022, PCRA counsel filed a Motion for Extension of Time to file an Amended PCRA. The basis for the motion was limited information was available concerning her whereabouts. On May 23, 2022, the [c]ourt directed [Appellant] to file an Amended PCRA by July 8, 2022. On July 6, 2022, PCRA counsel filed a "Supplement to PCRA Relative to Failure to Call Alibi Witness." Appended to the supplemental PCRA was "Exhibit A," a statement of Freeman. The first page of the statement is dated June 26, 2022, at the top. The second page of the statement bears a different date, June 29, 2022 next to a notary stamp near the bottom. It contains no notarial seal. The statement does not include Freeman's date of birth or any address where she can be found. By Memorandum and Order of April 14, 2023, the [c]ourt afforded PCRA counsel the opportunity to correct the deficiencies of the witness certification pursuant to 42 Pa.C.S.A. § 9545(d)(1). On November 1, 2022, PCRA counsel filed an "Additional Supplement to PCRA Relative to Failure to Call Alibi Witness."
(PCRA Court Opinion, filed at 1/19/24, 1-3) (internal footnote omitted).
The PCRA court held the evidentiary hearing on November 3, 2022. At the hearing, Appellant, Ms. Freeman, and trial counsel testified. At the conclusion of the hearing, the court permitted the parties to submit additional briefs on the matter. Following the submission of briefs, the court dismissed Appellant's PCRA petition by opinion and order entered January 19, 2024.
At some point after the denial of PCRA relief, Attorney Pitonyak ceased representing Appellant and current counsel, Attorney Fryling, commenced representation. The PCRA court's docket entries, however, do not memorialize how or when this change in representation occurred. We note that Attorney Fryling filed Appellant's notice of appeal, as well as his brief in this Court.
Appellant filed a timely notice of appeal on February 13, 2024. On February 14, 2024, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed his Rule 1925(b) statement on March 4, 2024. Despite having counsel of record, Appellant filed a pro se application for relief in this Court on June 4, 2024.
As a prefatory matter, we consider Appellant's pro se "application for relief and the change of appointed counsel." In this filing, Appellant baldly asserts that all prior PCRA counsel were ineffective. Initially, Appellant reiterates that the efforts of first PCRA counsel, Attorney Hathaway, resulted in the waiver of certain claims. The PCRA court later appointed new counsel, Attorney Pitonyak, and Appellant notes: "New counsel was … suppose[d] to file an amended [Rule] 1925(b) [statement] in order to preserve the claim of [Appellant's] pro se PCRA and bring up former PCRA counsel's ineffectiveness for not properly preserving said claims[.]" (Application for Relief, filed 6/4/24, at 2). Appellant insists, however, that Attorney Pitonyak failed to preserve his claims, thereby providing additional ineffective assistance. Under these circumstances, Appellant concludes that this Court must remand the matter for either: 1) current counsel to file an amended Rule 1925(b) statement preserving all claims of ineffectiveness; 2) the appointment of new counsel; or 3) a hearing to determine whether PCRA counsel were ineffective. We decline Appellant's invitation to remand.
In Commonwealth v. Bradley, ____ Pa. ____, 261 A.3d 381 (2021), our Supreme Court held that "a petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id. at ____, 261 A.3d at 401. The Supreme Court further stated that in some cases, "the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter." Id. at ____, 261 A.3d at 402. Nevertheless, this Court has explained:
[t]here 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. To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.Commonwealth v. McCready, 295 A.3d 292, 298 (Pa.Super. 2023) (internal citation omitted).
Indeed, as this Court has recently clarified: "Bradley did not guarantee a PCRA petitioner substantive review of claims of PCRA counsel's ineffectiveness, nor did it create an absolute right to remand for development of those claims." Commonwealth v. Lawrence, 309 A.3d 152, 155 (Pa.Super. 2024). "Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel's ineffectiveness[.]" Id. (quoting Commonwealth v. Parrish, ____ Pa. ____, ____, 273 A.3d 989, 1002 (2022) (emphasis added)). To demonstrate the propriety of a remand, one must, "either in the petition for remand or in [the appellate] brief, [explain] to this Court how further development of the factual record would satisfy all three prongs of [the] test [for ineffectiveness] as to each of prior PCRA counsel's alleged failings." Id. at 155-56.
Instantly, Appellant's pro se request for remand fails to develop any argument regarding all prior counsels' purported ineffectiveness. Appellant does not discuss or apply the three-part test for ineffective assistance, and he fails to acknowledge the need for presentation of a "layered" claim of ineffectiveness. As this Court has observed, "simply noting in Appellant's [filing] that he has complaints … is inadequate to warrant a remand." Lawrence, supra at 156.
To the extent that Appellant complains about Attorney Hathaway's representation, this is not the first opportunity for Appellant to advance such claims. Our review of the record reveals that Appellant challenged Attorney Hathaway's effectiveness in June 2020, when Appellant filed a pro se motion for change of appointed counsel. (See Pro Se Motion, filed 6/8/20, at ¶3). The PCRA court subsequently conducted a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998), and it appointed Attorney Pitonyak to serve as new PCRA counsel. (See Order, filed 6/11/20). Attorney Pitonyak represented Appellant in the PCRA proceedings upon remand. Rather than raising new ineffectiveness claims, Attorney Pitonyak and Appellant pursued the one claim for which this Court ordered further proceedings: trial counsel's failure to call Ms. Freeman as a witness. (See Brief in Support of Appellant's PCRA Petition, filed 4/19/23, at 1-14 (unnumbered)). See also Commonwealth v. Sepulveda, 636 Pa. 466, 483, 144 A.3d 1270, 1280 (2016) (explaining that PCRA court does not have authority or discretion to permit petitioner to raise new claims outside scope of remand order).
Despite having Attorney Pitonyak as counsel of record, Appellant also submitted pro se filings in the PCRA court. We acknowledge that that such filings violated the well-established prohibition against hybrid representation. See Commonwealth v. Robinson, 320 A.3d 732 (Pa.Super. 2024) (reiterating that when counseled litigant files pro se document, it is noted on docket and forwarded to counsel, but no further action is taken). Nevertheless, our review of one the pro se filings reveals that Appellant did not attempt to argue PCRA counsels' ineffectiveness. (See Pro Se Reply Brief, filed 6/9/23, at 1-9). Rather, Appellant essentially attempted to supplement Attorney Pitonyak's filings on the issue of trial counsel's failure to call Ms. Freeman.
Based upon the foregoing, Appellant's underdeveloped application for relief does not analyze how he would satisfy all three prongs of the test for ineffectiveness as to each of prior PCRA counsel's alleged failings. See Lawrence, supra. Further, we are not convinced that this is the first opportunity for Appellant to raise the claims of PCRA counsels' ineffectiveness after obtaining new counsel or acting pro se. See Bradley, supra. Under these circumstances, Appellant is not entitled to remand, and we deny his application for relief.
We are mindful of our Supreme Court's recent holding in Commonwealth v. Greer, Pa., 316 A.3d 623 (2024). There, a represented petitioner sought to raise Bradley claims against current counsel while the propriety of the order denying PCRA relief was pending on appeal. Our Supreme Court concluded that, "under these circumstances, an appellate court must remand the case to the PCRA court to have an on-the-record colloquy with the petitioner about his right to counsel, his inability to proceed through hybrid representation, and how he wishes to proceed." Id. at, 316 A.3d at 625. The instant case is distinguishable. Again, Appellant's pro se application for relief baldly asserts that prior PCRA counsel were ineffective by failing to preserve certain issues raised in Appellant's initial, pro se PCRA petition. Appellant does not develop additional arguments regarding the specific conduct of current counsel, Attorney Fryling. Further, unlike Greer, Appellant's application for relief, when read as a whole, does not raise the possibility that Appellant might prefer proceeding pro se to pursue his claims. See id. at, 316 A.3d at 629. Even if this was the case, Appellant filed his application for relief after this Court established the briefing schedule. See id. (stating if request to proceed pro se is filed after counsel has filed merits brief, request is considered untimely).
We now turn our attention to the one claim Appellant presents on appeal:
Whether the trial court erred in failing to find that counsel was ineffective for failing to call a specific witness, Lily Freeman, who could have testified as an alibi witness on behalf of [Appellant] at trial.
(Appellant's Brief at 2).
Appellant argues that trial counsel failed to call Ms. Freeman as a witness, even though Ms. Freeman was present, willing, and able to testify. Appellant asserts that Ms. Freeman would have confirmed his alibi and demonstrated that he did not commit the crimes at issue. Appellant insists that trial counsel's refusal to call Ms. Freeman was not based on reasonable, strategic judgement where trial counsel did not investigate the witness's potential testimony. Appellant concludes that trial counsel was ineffective for failing to call Ms. Freeman as a witness, and Appellant is entitled to a new trial on this basis. We disagree.
"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. Beatty, 207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218 A.3d 850 (2019). "[W]e review the court's legal conclusions de novo." Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ____ Pa. ____, 268 A.3d 386 (2021).
Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts.Beatty, supra at 961 (internal citations and quotation marks omitted).
"Counsel is presumed to have rendered effective assistance." Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal denied, 663 Pa. 418, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, 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. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her 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. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and quotation marks omitted). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111 (2011).
"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. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175, 179 A.3d 6 (2018) (quoting 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) (quoting Commonwealth v. Geathers, 847 A.2d 730, 733 (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." Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel's decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken.Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting Sandusky, supra at 1043-44).
"To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. [A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312 (2014) (internal citations and quotation marks omitted). "[A] criminal defendant 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." Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3, 22, 807 A.2d 872, 883 (2002)).
For claims of ineffectiveness based upon counsel's failure to call a witness:
A defense attorney's failure to call certain witnesses does not constitute per se ineffectiveness. In establishing whether defense counsel was ineffective for failing to call witnesses, a defendant must prove the witnesses existed, the witnesses were ready and willing to testify, and the absence of the witnesses' testimony prejudiced petitioner and denied him a fair trial.Commonwealth v. Cox, 603 Pa. 223, 267-68, 983 A.2d 666, 693 (2009) (internal citations omitted). A petitioner "must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case." Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110, 1134 (2008).
Instantly, the PCRA court summarized trial counsel's testimony as follows:
[Attorney Del Duca] is a former Agent with the Federal Bureau of Investigation (FBI). Following his tenure with the FBI, Attorney Del Duca began the practice of law in 1992. He is licensed to practice law in both the Commonwealth of Pennsylvania and the Commonwealth of Virginia. Given his background and training, he performs his own investigations
on cases. He has handled 15 to 20 murder trials, including death penalty cases in the Commonwealth of Virginia.
He was appointed to represent [Appellant] in August of 2015. Prior to [Appellant's] jury trial in May of 2016…, counsel met with [Appellant] at the Erie County Prison approximately ten (10) times. He met with [Appellant on] numerous occasions during the period covered by the letters introduced as exhibits. Del Duca did not recall discussing with [Appellant] a woman named Lily Freeman. Del Duca testified:
I will tell you that … anything in this case was certainly discussed in great detail. Now, if there had been a witness list, we would have gone over the witness list at Erie County Prison. If there had been some discussions of people to call, that would have been addressed as well. Like I said earlier, [Appellant] was very involved and rightly so in a very serious case. And everything done in this trial was done with his permission ... and his consent.
I don't recall getting a witness list from [Appellant].
Del Duca testified his recollection was he received "zero" phone messages from Freeman, and he did not believe he contacted her. Had he received a telephone message from her, he would have returned the call. He tries to return every call, though he candidly acknowledged there may be some calls in the course of a day he probably doesn't get back to.
Del Duca additionally testified [Appellant] had not previously shared with him the information in Freeman's statement, including the information about the change of clothing.
Del Duca spoke with Freeman for five or ten minutes during a break during the trial. His determination, based upon this conversation and discussions he previously had with [Appellant] in preparing for trial, was she would not be a credible witness. He discussed with [Appellant] his concerns
about the credibility of Freeman. … Del Duca stated, "I would never make a decision like that without telling my client the reasons behind it." In sum, although time had passed since [Appellant's] trial, Del Duca testified he believed the information Freeman shared with him during the break affected his strategic decision not to call Freeman as a witness on the basis it was contrary to his understanding of the facts following his investigation and conversations with [Appellant].
Del Duca testified [Appellant] never asked him to file a notice of alibi defense. He did not file a notice of alibi defense because, although he and [Appellant] discussed a potential alibi, he was not comfortable with [Appellant's] alleged alibi, which was that he was not there.
(PCRA Court Opinion at 4-6) (record citations omitted).
The PCRA court found trial counsel's testimony was credible. (Id. at 6). We grant great deference to this credibility determination. See Beatty, supra. Based upon trial counsel's testimony, the court determined that trial counsel possessed a reasonable basis for his decision not to call Ms. Freeman as an alibi witness. Our review of the record supports this determination. See id. Therefore, Appellant cannot satisfy the three-prong test for ineffective assistance of counsel. See Sandusky, supra. Accordingly, we affirm the order dismissing the PCRA petition and deny the pro se application for relief.
Order affirmed. Application for relief denied. Jurisdiction relinquished.
Judgment Entered.