J-S44009-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER L. FREEMAN,
Appellant No. 1565 WDA 2013
Appeal from the PCRA Order Entered September 6, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012372-2010
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 11, 2014
Appellant, Christopher L. Freeman, appeals pro se from the order
entered on September 6, 2013, dismissing his petition filed pursuant to the
Post-Convict -9546. After careful
review, we vacate the order and remand for further proceedings.
its opinion filed at the time of his direct appeal as follows:
Tyler Walk testified at trial that he and Megan Seastedt
were walking on July 14, 2010 near the West End Overlook park
in the city of Pittsburgh at approximately 9:00 p.m. As they
were walking together, they noticed a male walk past them and
si
white t-shirt and a red or dark cap. He had a hairstyle that
tunnel. When they were about a foot away from the male sitting
on the bench, the male got up from the bench and pulled a
not get a good look at the gun but he recalled seeing a silver
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Walk turned over a business card holder and his wallet. Another
male came from behind Mr. Walk and patted his pockets. Mr.
Walk recalled that one of the males was carrying a backpack.
This other male demanded that Mr. Walk turn over money. Mr.
Walk turned over a $20 bill that he found in his pocket. The
money. Mr. Walk testified that he got a good look at the male
holding the gun. They made direct eye cont
good look at the other male. The two males told Mr. Walk and
Ms. Seastedt not to call the police and they disappeared into the
park.
Once there, they phoned the police. Police responded to the
scene and began searching the area. Police detained two men,
[Appellant] and Marlin Fields. Mr. Walk and Ms. Seastedt were
asked to identify their assailants. At trial, Mr. Walk identified
[Appellant] as the male sitting on the bench that held the gun.
Mr. Walk also identified Marlin Fields as the other male. By the
time they had been apprehended by the police however,
[Appellant] was wearing a long sleeved red t-shirt instead of the
shirt he was wearing during the robbery.
On cross-examination, Mr. Walk was asked about the
physical description of the males that he provided to the police.
Mr. Walk testified that he believed he originally told the police
that the male holding the gun was about his height, which would
be about 5 feet, 9 inches. He did not recall if he originally
supplied an estimated weight for that male. He believed he told
ng [Appellant] walk past
them, sit on the bench and pull the gun on Mr. Walk. She
confirmed that Mr. Walk turned over the wallet, business card
holder and the $20 to [Appellant]. She believed [Appellant] was
he testified that
she believed the handgun looked more like a revolver than a
semi-automatic handgun. She testified that the male who came
up behind them during the robbery was wearing a black baseball
cap, white t-shirt and dark jeans and he was carrying a
backpack. She also recalled that the other male was wearing
what appeared to be grey diamond earrings. She testified that
[Appellant] told them not to call the cops.
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Ms. Seastedt testified that the responding officers also
asked her to identify the males they had detained. When they
got to the scene, officers asked her if she recognized the
backpack they found. She testified that it appeared to be the
backpack held by one of the males during the robbery. Ms.
Seastedt identified both [Appellant] and the other person during
the trial of this case as the persons who robbed Mr. Walk and
her.
Officer Causey from the City of Pittsburgh Bureau of Police
testified in this case. He explained that he was one of the
officers that responded to the scene of the robbery to search the
area for a possible suspect. He had been given a description of
two black males, in their late teens to early twenties,
approximately five feet nine inches and weighing 130 pounds.
Officers were told that one of them was wearing a red baseball
cap, a white t-shirt and had dread locks. The other male had a
black baseball cap, white t-shirt and was carrying a backpack.
According to Officer Causey, they encountered two black males
that closely fit the descriptions of the males they were seeking.
Officer Causey testified that the ages were similar, the hair on
one of the actors looked right and the ball caps looked right. He
also explained their clothing was close.
[Appellant] was wearing a red cap and was wearing a red
shirt with a white shirt under it. The other male was wearing a
black baseball cap, a white t-shirt, blue jeans and was carrying a
backpack. Officers conducted a search of the area where the
business card case or his $20. Officers did, however, find a black
revolver approximately ten to fifteen yards from where the
suspects were detained. The gun was loaded and the hammer
was pulled back on the gun. Based on this evidence, [Appellant]
was convicted as set forth above.
Trial Court Opinion, 12/21/2011, at 1-4.
The Commonwealth charged Appellant with robbery, criminal
non-jury trial was held on March 21, 2011, at which time the trial court
found him guilty on all counts. On August 22, 2011, the trial court
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sentenced Appellant to a term of 5-
post-sentence motions on September 1, 2011, which were denied by the
trial court on September 7, 2011.
On October 6, 2011, Appellant filed a timely notice of appeal to this
Court. In that appeal, Appellant claimed that the trial court abused its
discretion when it denied his post-sentence motion alleging that the verdict
was against the weight of the evidence. The claim was based upon the
quality of the identification evidence. On May 15, 2012, this Court affirmed
Commonwealth v. Freeman, 50 A.3d
243 (Pa. Super. 2012) (unpublished memorandum). Appellant did not seek
review with our Supreme Court.
Appellant filed a timely, pro se PCRA petition on May 9, 2013. The
PCRA court appointed Scott Coffey, Esq., to represent him. Attorney Coffey
subsequently filed a Turner1/Finley2 -
motion to withdraw. On August 13, 2013, the PCRA court granted Attorney
intent to dismiss his PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. On August 26, 2013, Appellant filed a pro se motion titled
Pro Se
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
2
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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failure to address or raise certain issues in the no-merit letter. The PCRA
September 6, 2013.
Appellant filed a timely pro se notice of appeal on September 16,
2013, which was later amended on October 1, 2013. Appellant complied in
a timely fashion when the PCRA court ordered him to file a Pa.R.A.P.
1925(b) statement. The trial court issued its Rule 1925(a) opinion on
December 4, 2013. Appellant now presents the following questions for our
review:
I. Whether the [PCRA] court erred and abused its discretion
for failure to comply with Rule 907 and give the Appellant
which also did not include its reasons why [the] petition
the [PCRA] court?
II. Whether the [PCRA] court committed prejudicial error for
Appellant to an on-the-record hearing to see if [he] is
competent enough to represent himself, which he [is] also
Constitution?
III.
failure to properly preserve the following issues[:] failure
of trial counsel to challenge suggestive identification and
failure of appellate counsel to perfect direct appeal, which
process [rights]?
IV. Whether [PCRA] counsel provided ineffective assistance,
whether counsel failed to meet the withdraw procedures,
which precisely bars counsel to evade his obligation of
-
to
conduct an exhaustive examination to disclose all possible
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errors on appeal which is required by the Sixth
Amendment of the Constitution?
Our standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidentiary record and free of legal error. Commonwealth v. Pitts, 981
findings of the PCRA court if the record contains any support for those
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
presented.
Appellant first asserts that the Pa.R.Crim.P. 907 notice provided by the
PCRA court was defective because it did not include the reason why the
petition was going to be dismissed. Rule 907 provides, in pertinent part, as
follows:
Except as provided in Rule 909 for death penalty cases,
(1) the judge shall promptly review the petition, any answer by
the attorney for the Commonwealth, and other matters of record
relating to the defendant's claim(s). If the judge is satisfied
from this review that there are no genuine issues
concerning any material fact and that the defendant is not
entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings, the
judge shall give notice to the parties of the intention to
dismiss the petition and shall state in the notice the
reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave
to file an amended petition, or direct that the proceedings
continue.
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Pa.R.Crim.P. 907(1) (emphasis added).
In the present case, the PCRA court issued an order granting Attorney
that
-
Id. The entire order reads as follows:
AND NOW, to-wit, this 13th day of August[,] 2013, it is
-
o
Pennsylvania v. Finley, 481 U.S. 551 (1987) and
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), it is
hereby ordered that the Petition to Withdraw as Counsel is
GRANTED and the Petitioner is put on notice that the Court
lication for Post Conviction Relief
without a hearing.
The Petitioner has the right to respond to this notice of
intention to dismiss the Petition for Post Conviction Relief within
twenty (20) days of the date of this Order. As counsel has been
permitted to withdraw, this response must be filed by Petitioner
or private counsel. If such a response is not filed within twenty
(20) days, this Court will enter a final Order dismissing the PCRA
Petition.
Order, 8/13/13, at 1. The PCRA court states that the above order provided
Appellant with adequate notice of the reasons for the dismissal of his PCRA
petition.
We disagree. We could countenance that the above order might
provide adequate notice to a legal professional of the reasons for the
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dismissal of A
even a marginally competent attorney would be naturally inclined to locate
and read the referenced no-merit letter. However, this notice was not
directed to an attorney, but instead to an indigent, incarcerated, and
potentially under- or uneducated individual who is subject to an extremely
Furthermore, the notice does not even contain language that would
suggest to a layperson that the reasons for dismissal are contained within
the no-merit letter, such as by stating that the reasons for dismissal are
identical to the reasons asserted by counsel in the Turner/Finley letter.
And even if the court did use such language, it is apparent from the record
that the Turner/Finley letter in question was not attached to the notice
provided to Appellant, a simple act that would have done much to direct
attention to the rationale therein.
In Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super.
Turner/Finley letter was
3
We first recognized
that the notice of the intention to dismiss requirement is mandatory, as is
such notice provide the rationale for the dismissal.
____________________________________________
3
Feighery specifically dealt with prior Rule of Criminal Procedure 1507, the
previous version of Rule 907. The only notable difference between the two
similarly worded provisions is that the current version of Rule 907 provides a
20-day response period, whereas prior Rule 1507 only allotted 10 days.
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Feighery
-merit] letter to [the] appellant is sufficient notice to meet
presumption that [the]
appellant has received a copy of this letter which is addressed to the court,
and also the letter makes no mention of the potential for dismissal without
Id.
Although the PCRA court did provide a bare-bones notice pursuant to
Rule 907 in this case, whereas the PCRA court in Feighery relied exclusively
on a Turner/Finley letter to satisfy the notice requirement, some of the
same concerns we raised in Feighery remain present in this case. Indeed,
-merit letter to the PCRA court, he states only that he
-
Turner/Finley Letter, 8/7/13, at 1. Thus, at the time the PCRA court issued
notice of
letter. Clearly the Rule 907 notice is a requirement on the court, not on
responsibility to inform a PCRA petitioner of the reasons why their PCRA
petition will be dismissed.
notice, however, we can ascertain from the record that Appellant was
As will be discussed in greater detail below, Appellant did file a response to
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Pro Se ithin the
20-day window allotted by Rule 907. In that petition, Appellant responded
Turner/Finley letter by claiming that Attorney Coffey
failed to raise potentially me
Pro Se, 8/26/13, at 1 ¶ 2. This demonstrates that Appellant was not
l ultimately
provide him with relief.
Next, Appellant claims that the PCRA court failed to comply with
Pa.R.Crim.P. 121 when it declined to hold a hearing to determine if Appellant
was competent to represent himself. Essentially, Appellant claims that the
court should not have permitted Attorney Coffey to withdraw without first
knowingly, voluntarily, and intelligently [made] pursuant to [Rule]
Appellant also asserts that the PCRA
-
representation.
pursuant to Turner/Finley sion to the Sixth
Commonwealth v. Priovolos,
715 A.2d 420, 421 (Pa. 1998). Moreover, we see no evidence of a violation
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Sixth Amendment right to self-representation. Appellant was
permitted to represent himself pro se, and continues to do so without
hindrance. Accordingly, we ascertain no Sixth Amendment violation in this
regard.
s violated in this case also lacks
a colloquy for a trial court to use in order to ascertain whether the decision
to proceed pro se
counsel when the court permitted PCRA counsel to withdraw.
As noted above, there is no Sixth Amendment right to counsel in
collateral proceedings. Instead, first-time PCRA petitioners are afforded a
statutory right to counsel pursuant to Pa.R.Crim.P. 904. See
unrepresented defendant satisfies the judge that the defendant is unable to
afford or otherwise procure counsel, the judge shall appoint counsel to
represent the defendant on the defendant's first petition for post-conviction
atutory right with the
appointment of Attorney Coffey. Attorney Coffey, ostensibly pursuant to the
framework outlined by Turner and Finley, was permitted to withdraw from
representing Appellant. In these circumstances, Rule 121 is simply not
implicated, because the withdrawal of counsel was precipitated by a
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Turner/Finley
When counsel withdraws pursuant to Turner and Finley, the affected
pro se, or by privately retained counsel, or not at
Finley, 550 A.2d at 218. There is simply no purpose served by
conducting a Rule 121 colloquy when the Turner/Finley framework permits
Appellant to proceed pro se without any requirement that he affirmatively
waive his right t
claim lacks merit.
to seek suppression of a suggestive identification procedure, a show-up that
occurred in the immediate aftermath of the crime for which Appellant was
convicted.4
court erred when it accepted the Turner/Finley letter despite Attorney
Turner/Finley.
____________________________________________
4
Appellant also asserts that appellate counsel was ineffective for not raising
this matter on direct appeal. However, these are essentially mutually
exclusive claims. With few exceptions, direct appellate counsel cannot raise
a claim that was not adequately preserved in the trial court. See Pa.R.A.P.
rule is that appellate counsel cannot be found to be ineffective for his or her
failure to raise a claim that trial counsel failed to adequately preserve for
appellate review.
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In Turner
for the withdrawal of court-appointed counsel in collateral attacks on
Turner, 544 A.2d at 927. The traditional
requirements for proper withdrawal of PCRA counsel, originally elucidated 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),5 which provides:
(1) As part of an application to withdraw as counsel, PCRA
-
-
the petitioner wishes to have reviewed, and detail the nature
and extent of counsel's review of the merits of each of those
claims[;]
-
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
-
statement advising the PCRA petitioner that, in the event the
____________________________________________
5
In Pitts, our Supreme Court abrogated Friend 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
Pitts
-merit letter adequately
pr
Pro Se
Appellant indicated that Attorney Coffey had failed to raise or address a
potentially meritorious claim of tria
Appellant continues to assert this argument across issues III and IV of his
appellate brief.
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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.
Friend, 896 A.2d at 615 (footnote omitted).
pro se PCRA petition, he clearly indicated that he wished
to raise the claim -
of- Pro Se PCRA Petition, 5/9/13, at 3. Attorney
Coffey acknowledged that Appellant raised this claim in his Turner/Finley
letter. Turner/Finley Letter, 8/7/13, at 7. In assessing the issue,
however, Attorney Coffey characterized the claim merely as the predicate for
in-court identification of Appellant. Id. at 10. He also
assessed whether the stop of Appellant was permissible under the Fourth
Amendment. Id. at 10-11. Attorney Coffey never addressed whether
evidence concerning the identification at the show-up was itself suppressible
on the basis that it was unduly suggestive. He did, however, conclude that
tain [Appellant] and permit the victims
Id. at 11.
This conclusion was legally erroneous. Whether the police had
probable cause to detain Appellant is not the test applied to determine
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whether a show-up of the sort that occurred in this case was suppressible.
The applicable test is as follows:
the central inquiry is whether, under the totality of the
circumstances, the identification was reliab Commonwealth
v. Meachum, 711 A.2d 1029 (Pa. Super. 1998). The question
for the suppression court is whether the challenged identification
has sufficient indicia of reliability to warrant admission, even
though the confrontation procedure may have been suggestive.
Commonwealth v. Thompkins, 311 Pa.Super. 357, 363, 457
A.2d 925, 928 (1983) (citation and footnote omitted).
Suggestiveness in the identification process is a factor to
be considered in determining the admissibility of such
uggestiveness alone does not warrant
as violative of due process rights unless the facts
demonstrate that the identification procedure was so
stantial
Commonwealth v. Sample, 321 Pa.Super. 457, 462, 468 A.2d
799, 801 (1983) (citations and quotations omitted). In
determining whether a particular identification was reliable, the
suppression court shou
witness to view the criminal at the time of the crime, the
witness' degree of attention, the accuracy of [her] prior
description of the criminal, the level of certainty demonstrated at
the confrontation, and the time between the crime and the
Commonwealth v. Monroe, 373 Pa.Super.
618, 622, 542 A.2d 113, 115 (1988), appeal denied, 522 Pa.
574, 559 A.2d 36 (1989) (citation omitted). The opportunity of
the witness to view the actor at the time of the crime is the key
factor in the totality of the circumstances analysis.
Commonwealth v. Spiegel, 311 Pa.Super. 135, 145, 457 A.2d
531, 536 (1983) (citation omitted).
Commonwealth v. Bruce, 717 A.2d 1033, 1036-37 (Pa. Super. 1998).
PCRA counsel did conclude th
in-court identifications
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of Appellant precluded a meritorious claim that trial counsel was ineffective
for failing to seek suppression of the in-court identification. However, that is
a distinct issue from the suppressibility of the out-of-court identification (the
show-up). Indeed, failing to make such a distinction ignores the possibility
that an unduly suggestive show-
certainty level as to their in-court identifications. Moreover, certain factors
present during the show-up suggest that there was at least some arguable
merit to the forgone suppression claim. Appellant was handcuffed at the
time of the show-up and the initial descriptions of the perpetrators were
based primarily upon their clothing and race rather than any facial features
or other intrinsic identifying characteristics. As such, we can certainly
conclude that a suppression claim targeting the show-up identification
evidence would not have been frivolous.6
The pertinent question before the PCRA court, therefore, was whether
counsel listed and addressed this claim in his Turner/Finley letter. We
conclude that Attorney Coffey did not address the claim, even though he
acknowledged that Appellant has raised the claim in his pro se PCRA
Turner/Finley did not conform to the
second and third Friend
____________________________________________
6
We do not issue any conclusion regarding whether such a claim would have
ultimately been deemed meritorious.
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agreement with the non-existent analysis simply cannot satisfy the fifth and
sixth Friend requirements. The PCRA court stated:
As noted by appoint -
adopted by this Court, the Superior Court has previously
described, albeit in the context of a challenge to the weight of
as the perpetrator at trial and both victims positively identified
Petitioner at trial and at the scene of the crime. Any motion to
suppress challenging the pretrial identification of Petitioner
would have been denied and this claim is, therefore, baseless.
Id. at 5.
As noted above, counsel did not address the viability of a suppression
motion targeting the show-up. However, the PCRA court appears to address
of the evidence claim supports its determination that all challenges to the
admissibility of identification evidence in this case would have been frivolous
on that basis. However, as noted in Bruce, supra, the certainty displayed
by witnesses is but one of many factors the court must consider in
determining the admissibility of identification evidence. The court must also
the crime, the witness' degree of attention, the accuracy of [her] prior
and] the time between the crime and the
Bruce, 717 A.2d at 1037. Our prior decision dismissing
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therefore, that the PCRA court conflates these two distinct issues. We
ineffectiveness claim precluded or frivolous.
Turner/Finley letter and the
Friend.
basis of the Turner/Finley letter was not supported by the record and
constitutes legal error. However, because the PCRA court dismissed
whether trial counsel had a reasonable basis for not filing a suppression
-
regarding
ineffectiveness claim at this time. Consequently, we reverse the order of the
out a hearing and remand
this matter to the trial court for further proceedings. We instruct the PCRA
court to appoint new counsel for the filing of an amended petition in the
event that Appellant does not wish to continue pro se.7
____________________________________________
7
If Appellant wishes to continue representing himself pro se, the PCRA Court
should conduct a colloquy to determine that the waiver of his statutory right
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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Order vacated. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2014
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