Opinion
J-S21005-16 No. 2351 EDA 2015
04-25-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHYEIM YASIR, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered July 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006215-2010 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Shyeim Yasir, appeals from the post-conviction court's July 9, 2015 order dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Additionally, Appellant's counsel, J. Matthew Wolfe, Esq., has filed a petition to withdraw from representing Appellant, along with an Anders brief. While a Turner/Finley 'no-merit' letter is the appropriate filing when counsel seeks to withdraw on appeal from the denial of PCRA relief, we will accept Attorney Wolfe's Anders brief in lieu of a Turner/Finley letter. See Commonwealth v. Widgins , 29 A.3d 816, 817 n.2 (Pa. Super. 2011) ("Because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.") (citation omitted). After careful review, we agree with Attorney Wolfe that Appellant's issues are meritless. Thus, we affirm the order dismissing Appellant's PCRA petition and grant counsel's petition to withdraw.
At the PCRA hearing in this case, Appellant stated that his name is Yasir Shyeim, and the court acknowledged that Appellant's first and last names were incorrectly reversed in the record below. N.T. PCRA Hearing, 7/9/15, at 16-17.
Anders v. California , 386 U.S. 738 (1967).
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
Following a non-jury trial on December 23, 2010, Appellant was convicted of aggravated assault, criminal conspiracy to commit aggravated assault, simple assault, and recklessly endangering another person (REAP). His convictions stemmed from his role in the physical assault of his former girlfriend, Candace Jones. On February 4, 2011, Appellant was sentenced to an aggregate term of 7½ to 15 years' incarceration. He filed a timely notice of appeal, and this Court affirmed his judgment of sentence on October 7, 2011. Commonwealth v. Yasir , 37 A.3d 1226 (Pa. Super. 2011) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with our Supreme Court.
Appellant was acquitted of various offenses, including attempted murder, possessing an instrument of crime, and two firearm charges.
On October 2, 2012, Appellant filed a timely, pro se PCRA petition. Attorney Wolfe was appointed to represent him and filed an amended petition on Appellant's behalf. On July 9, 2015, a PCRA hearing was conducted. That same day, the court issued an order dismissing Appellant's petition. He filed a timely notice of appeal, and the court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
On September 1, 2015, Attorney Wolfe filed a Rule 1925(c)(4) statement, indicating that he would be filing, with this Court, a petition to withdraw as Appellant's counsel. See Pa.R.A.P. 1925(c)(4) (permitting counsel to file a statement of their intent to file a petition to withdraw and an Anders brief in lieu of a Rule 1925(b) statement). Unfortunately, in light of Attorney Wolfe's Rule 1925(c)(4) statement, the PCRA court did not issue an opinion in this case. See PCRA Court's "Order To Transmit Record," 9/15/15 (directing that the record be transmitted to this Court and stating that no opinion would be filed in light of Attorney Wolfe's Rule 1925(c)(4) statement).
Before we may address the issues Appellant seeks to have reviewed, we must examine counsel's petition to withdraw. In Turner , our Supreme Court "set forth the appropriate procedures for the withdrawal of court-appointed counsel in collateral attacks on criminal convictions[.]" Turner , 544 A.2d at 927. The traditional requirements for proper withdrawal of PCRA counsel, originally set forth in Finley , were updated by this Court in Commonwealth v. Friend , 896 A.2d 607 (Pa. Super. 2006), abrogated by Commonwealth v . Pitts , 981 A.2d 875 (Pa. 2009), which provides:
In Pitts , our Supreme Court abrogated Friend "[t]o the extent Friend stands for the proposition that an appellate court may sua sponte review the sufficiency of a no-merit letter when the defendant has not raised such issue." Pitts , 981 A.2d at 879. In this case, Attorney Wolfe filed his petition to withdraw and no-merit letter with this Court and, thus, our Supreme Court's holding in Pitts is inapplicable.
1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a "no-merit" letter[;]Friend , 896 A.2d at 615 (footnote omitted).
2) PCRA counsel must, in the "no-merit" letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel's review of the merits of each of those claims[;]
3) PCRA counsel must set forth in the "no-merit" letter an explanation of why the petitioner's issues are meritless[;]
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the "no-merit" letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;
5) the court must conduct its own independent review of the record in the light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and
6) the court must agree with counsel that the petition is meritless.
Here, Attorney Wolfe has filed a petition to withdraw and a brief, which we will treat as his no-merit letter. Therein, Attorney Wolfe sets forth the two issues Appellant wishes to have reviewed, and he indicates the nature and extent of his review of those claims. He also explains why Appellant's issues are meritless. Attached to his petition to withdraw, Attorney Wolfe includes a letter addressed to Appellant informing Appellant that he is withdrawing, stating that he has enclosed his no-merit letter, and advising Appellant that he has the right to retain private counsel or proceed pro se. Accordingly, Attorney Wolfe has satisfied the first four requirements for withdrawal under Turner/Finley.
Next, we will conduct our own independent assessment of the record to determine if the issues presented in Appellant's petition are meritless. This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007).
First, Appellant asserted in his PCRA petition an after-discovered evidence claim.
To warrant relief, after-discovered evidence must meet a four-prong test: (1) the evidence could not have been obtained before the conclusion of the trial by reasonable diligence; (2) the evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for purposes of impeachment; and (4) the evidence is of such a nature and character that a different outcome is likely. Commonwealth. v. Dennis , 552 Pa. 331, 715 A.2d 404 (1998). At an evidentiary hearing, an appellant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted.Commonwealth v. Rivera , 939 A.2d 355, 359 (Pa. Super. 2007).
The new evidence discovered by Appellant was the ostensible recantation of Candace Jones' trial testimony. By way of background, Jones testified at Appellant's trial that she and Appellant were involved in a romantic relationship in August of 2009. N.T. Trial, 12/23/10, at 22. On August 11, 2009, they got into an argument and Jones asked Appellant to come to the apartment they shared and remove his belongings. Id. at 33-34. Appellant arrived at the residence and collected his things. Id. at 35. Jones testified that as Appellant was leaving, he kept "stalling at the door." Id. Jones then heard footsteps and saw "three girls coming up the steps[]" of the apartment building. Id. Jones stated that Appellant began "laughing[]" and "[p]ushed the door getting ready to walk back in" the apartment. Id. Jones "tried to shut the door" but Appellant "pushed it open" and he and "[t]he girls came in." Id. Jones saw that one of the women had a fire extinguisher in her hand. Id. at 39-40. Jones tried to run into the kitchen to get a knife, but Appellant blocked her way. Id. at 39, 49. Jones also tried to get a gun that she kept in a closet in the apartment, but the gun was not there. Id. at 39. The woman then struck Jones in the head with the fire extinguisher. Id. at 45-46. Jones testified that she could not recall much of what occurred after she was hit in the head, but she remembered fighting back and then losing consciousness. Id. at 48. When she woke up, she was alone and "was bleeding from [her] head profusely." Id. at 53. Jones managed to crawl to a neighbor's apartment, and the neighbor then called for an ambulance. Id. at 51.
At the PCRA hearing, Jones testified that after trial, she felt troubled by the fact that Appellant "was ... in prison doing so much time" when Jones could not specifically remember exactly what Appellant did during the course of the attack. N.T. PCRA Hearing, at 33-34. Jones was asked to explain exactly what she recalled happening on the day she was assaulted. Id. at 36. Jones testified that on August 11, 2009, she told Appellant to come get his belongings from her apartment, and he did. Id. at 37. As Appellant was leaving, they were standing in the doorway of the apartment talking when three women "came up the steps...." Id. at 38. Jones then stated:
[Jones]: As [the women were] coming up the steps, I just went frantic. Like oh, so [Appellant] brought some Bs to my house, you know, the B word. And [one woman] grabbed -- I seen her grab the fire extinguisher as she turned the steps. So I started throwing things. I'm going to go to the closet. I'm looking for, you know, the gun that they keep bringing up and it wasn't there. Like everything was so quick and frantic.Id. at 38-39. Jones testified that she was knocked unconscious and when she awoke, she was bleeding and managed to get to her neighbor's apartment, who then called the police. Id. at 40. Jones further claimed at the PCRA hearing that after the attack, she learned from "other people who were involved" that Appellant had "broke [the fight] up...." Id. at 44, 47.
It was a stand off with me and her. There were some words exchanged. [Appellant] didn't really say much, you know. ...
And then the next thing I know, I got hit.
Appellant also took the stand at the hearing and testified that he was inside the apartment when the three women came in and started arguing with Jones. Id. at 24. He stated that he had nothing to do with the women coming to the apartment, and that when the fight began, he "stopped it" and "pushed everybody out the door." Id. at 24.
At one point during the PCRA hearing, the court asked Jones specifically about her trial testimony that Appellant pushed the door open to allow the women inside. Id. at 55-57. After Jones offered some vague responses to the court's question, the court read her trial testimony about Appellant's pushing the door open and asked, "You said he pushed the door open and let the girls in. Did that happen?" Id. at 57. Jones replied, "Yes, we were all standing in the doorway." Id. Jones also testified that Appellant stood in the doorway to the kitchen to prevent her from getting a knife. Id. at 58-59. Finally, Jones testified that she was not lying during her trial testimony. Id. at 55.
At the close of the PCRA hearing, the court dismissed Appellant's after-discovered evidence claim. In doing so, the court first pointed out that Jones' PCRA hearing testimony that Appellant broke up the fight was based on information Jones "heard from some other people" and, as such, it would not be admissible at a new trial. Id. at 69, 80. The court then explained that Jones' testimony regarding Appellant's involvement in the attack was not significantly different than her trial testimony, and was "not the kind of newly discovered evidence that would entitle [Appellant] to a new trial." Id. at 69. The court emphasized that at both trial and the PCRA hearing, Jones stated that Appellant pushed the apartment door open to allow the three women to enter, and he kept Jones from getting "something from the kitchen to defend herself[.]" Id. at 70. Because the court had initially convicted Appellant based on "the conspiracy[,]" and had not found that Appellant had participated in the physical assault, the court concluded that Jones' testimony at the PCRA hearing would not result in a different outcome if Appellant were tried again.
The record supports the court's determination that Jones' testimony at the PCRA hearing did not differ, in significant respects, from her trial testimony. Jones stated at both proceedings that Appellant pushed the door open to allow Jones' attackers into her apartment, and that he blocked her from entering the kitchen to get a weapon to protect herself from the assault. Thus, the PCRA court did not abuse its discretion in concluding that Jones' ostensibly new testimony would not result in a different verdict if Appellant received a second trial. Accordingly, we agree with Attorney Wolfe that Appellant's first issue is meritless.
Appellant's second issue involves a claim of trial counsel ineffectiveness. Where a petitioner asserts such a claim, he
will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective 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." 42 Pa.C.S. § 9543(a)(2)(ii). "Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him." [ Commonwealth v.] Colavita , 606 Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing Strickland [ v. Washington , 104 S.Ct. 2053 (1984)]). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See [ Commonwealth v.] Pierce , [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali , 608 Pa. 71, 86, 10 A.3d 282, 291 (2010). "If a petitioner fails to prove any of these prongs, his claim fails." Commonwealth v. Simpson , [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel's assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. See Ali , supra. Where matters of strategy and tactics are concerned, "[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Colavita , 606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks omitted). 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." Commonwealth v. King , 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation, quotation marks, and citation omitted). "'[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.'" Ali , 608 Pa. at 86-87, 10 A.3d at 291 (quoting Commonwealth v. Collins , 598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland , 466 U.S. at 694, 104 S.Ct. 2052)).Commonwealth v. Spotz , 84 A.3d 294, 311-12 (Pa. 2014).
Here, Appellant seeks to argue that his trial counsel was ineffective for advising him not to testify on his own behalf. At the PCRA hearing, Appellant claimed that he told his counsel that he wanted to testify, and explained her response as follows:
[Appellant]: [Counsel] told me that she didn't want me to testify because of my record.N.T. PCRA Hearing at 18-19. Appellant claimed that he chose not to testify based solely on counsel's advice not to take the stand. Id. at 19.
When I asked, you know, what does my record have to do with it? She just said your record and moved on. She wouldn't talk about it ... anymore. She moved on to something else.
Appellant's trial counsel also testified at the PCRA hearing. She stated that Appellant's prior criminal record included gun and drug offenses. Id. at 10. She acknowledged that those offenses were not crimen falsi, and she denied telling Appellant "that merely by testifying, his convictions would come into evidence...[.]" Id. at 13. Counsel explained that she advised Appellant not to testify for fear that he would open the door to the evidence of his prior gun charges because Appellant "was really focussed [sic] on the gun," and wanted to testify that "it wasn't [his] gun. [He] didn't have a gun." Id. at 11. Counsel feared that Appellant would take the stand and "start saying things like[, ']I've never had a gun. I don't have a gun. I've never owned a gun.['"] Id. at 10-11. If Appellant did make such remarks on the stand, counsel believed it would open the door to the evidence of his prior offenses involving firearms. Id. at 11. Such evidence would be damaging to Appellant's defense of the firearm charges in the present case, which counsel believed that the Commonwealth would have difficulty proving based only on Candace Jones' testimony. Id. Accordingly, counsel advised Appellant not to take the stand, but explained to him that it was "ultimately his decision to testify...." Id. at 12.
From this testimony, the PCRA court concluded that Appellant's trial counsel was not ineffective. Initially, the court noted that Appellant was acquitted of the firearm charges in this case. Id. at 65. The court then stated:
THE COURT: I will find [counsel] to have been credible. I believe her version of the events. I think that she had a very good reason based on everything she said for discouraging [Appellant] from testifying.Id. at 78. Thus, the PCRA court found counsel's "advice was accurate" and that "she had a reasonable basis for encouraging [Appellant] not to testify." Id. at 79.
...
I do not believe that she told him or would tell any client that those convictions would come in just because he testified. I accept [what] ... [Appellant] said to the extent that he believed she was discouraging him from testifying, but as everybody has said, I think he knew it was ultimately his decision, his right to make that decision and there would be good reason to keep him off the stand.
The record supports the PCRA court's credibility determinations regarding trial counsel's testimony and, thus, they are binding on this Court. Commonwealth v. White , 734 A.2d 374 (Pa. 1999) (stating appellate court is bound by PCRA court's credibility determinations where they are supported by the record). We ascertain no error in the court's conclusion that counsel had a reasonable, strategic basis for advising Appellant not to take the stand. Accordingly, we agree with Attorney Wolfe that the second issue Appellant seeks to raise on appeal is meritless.
Because the two issues Appellant presented in his petition are meritless, we affirm the PCRA court's order denying Appellant post-conviction relief, and grant Attorney Wolfe's petition to withdraw.
Order affirmed. Petition to withdraw granted. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016