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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD GEORGE CUNNINGHAM
Appellant No. 1821 WDA 2013
Appeal from the PCRA Order of November 7, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0015297-2006
BEFORE: BENDER, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED OCTOBER 03, 2014
Richard Cunningham (“Cunningham”) appeals the November 7, 2013
order that denied his petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Cunningham’s counsel has filed a
petition to withdraw as counsel and a Turner/Finley1 brief. After review,
we affirm the order and grant counsel’s petition.
On direct appeal, this Court summarized the factual and procedural
history of this case as follows:
On the evening of February 19, 2005, Kevilin Middleton hosted a
birthday party for T.C. Lyerly. Toward the end of the party, Mr.
Middleton made arrangements for exotic dancers to come to his
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*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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residence and perform in exchange for two hundred dollars
($200). The exotic dancers, Angel Potter and Helen McCorkle,
arrived at Mr. Middleton’s residence along with Geneva Burrell.
At this time, Mr. Middleton, Mr. Lyerly, and Chaoe Davis were
the only people still at the party. Before the dancers’
performance, however Mr. Middleton insulted Ms. Potter’s
appearance and refused to provide payment. Mr. Middleton, Ms.
Potter, and Ms. Burrell began to argue. The argument escalated,
and Ms. Potter reached into Mr. Middleton’s pocket and removed
money. Ms. Burrell advised Ms. Potter to return the money, and
Ms. Potter eventually complied. Shortly thereafter, Ms. Potter
and Ms. Burrell telephoned [Cunningham] and his co-defendants
to come to Mr. Middleton’s home and help secure payment.
Approximately thirty (30) minutes later, a van arrived at Mr.
Middleton’s house. [Cunningham], Alfon Brown, Ramone Coto,
and Eric Surratt exited the van and approached the residence.
The men carried guns, and [Cunningham] wore a hooded
sweatshirt and ski mask. Upon their arrival, at least three (3) of
the men entered Mr. Middleton’s house without permission and
demanded payment for the dancers. Before Mr. Middleton had
an opportunity to comply, the men began firing at Mr. Middleton,
Mr. Lyerly, and Mr. Davis. Mr. Lyerly and Mr. Davis died
instantly. Mr. Middleton sustained critical injuries from the
gunshots.
The Commonwealth charged [Cunningham] with two (2) counts
of criminal homicide, criminal attempt, burglary, aggravated
assault, carrying a firearm without a license, and criminal
conspiracy. On June 18, 2007, [Cunningham] proceeded to a
bench trial. The court tried [Cunningham] and his co-defendants
jointly.
At trial, the Commonwealth presented testimony from Ms.
McCorkle, Ms. Burrell, and Ms. Potter. Ms. McCorkle testified
that she saw four (4) men exit a van and walk towards Mr.
Middleton’s house carrying guns. She identified Mr. Brown, Mr.
Coto, and Mr. Surratt, but did not recognize the fourth gunman.
Ms. Burrell, however, positively identified [Cunningham] as the
fourth man, who entered the house wearing a ski mask and
carrying a gun. Ms. Potter also testified she heard Ms. Burrell
direct [Cunningham] to Mr. Lyerly’s location inside the house.
Further, a latent fingerprint examiner conclusively established
the fingerprints lifted from the front storm door at Mr.
Middleton’s residence matched [Cunningham’s] fingerprints.
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Following numerous continuances, the court scheduled closing
arguments for February 8, 2008. After the defense rested its
case, however, [Cunningham’s] counsel became seriously ill and
died. Consequently, the court appointed replacement counsel to
represent [Cunningham]. On February 8, 2008, replacement
counsel appeared before the court and explained that he was
unprepared to proceed. As a result, the court rescheduled
[Cunningham’s] closing argument for July 7, 2008, giving
replacement counsel five (5) months to consult with
[Cunningham], review the file, and prepare to close for the
defense.
On July 7, 2008, replacement counsel delivered closing
argument. Subsequently, the court found [Cunningham] guilty
of two (2) counts of second degree murder and one (1) count
each of burglary and criminal conspiracy.[2] On September 22,
2008, the court sentenced [Cunningham] to concurrent terms of
life imprisonment for his second degree murder convictions. The
court also imposed concurrent terms of thirty (30) to sixty (60)
months’ imprisonment for his burglary conviction and eighteen
(18) to thirty-six (36) months’ imprisonment for his conspiracy
conviction. On October 2, 2008, [Cunningham] timely filed a
post-sentence motion, which the court denied on December 9,
2008. [Cunningham] did not pursue a direct appeal with [the
Superior Court].
On April 6, 2009, [Cunningham] timely filed a pro se petition
pursuant to [the PCRA]. Thereafter, the PCRA court appointed
counsel. On July 8, 2009, counsel filed an amended PCRA
petition, requesting reinstatement of [Cunningham’s] appellate
rights nunc pro tunc. On August 20, 2009, the PCRA court
granted the requested relief.
On September 18, 2009 [Cunningham] timely filed his notice of
appeal.
Commonwealth v. Cunningham, 1614 WDA 2009, slip op. at 1-4 (Pa.
Super. July 30, 2010) (footnote omitted).
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2
18 Pa.C.S.A. §§ 2502(b), 3502(a), and 903(a), respectively.
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This Court affirmed Cunningham’s judgment of sentence in part, but
vacated the thirty to sixty month sentence for burglary. The panel held that
the sentencing court erred in imposing a separate sentence for burglary
because that conviction was the predicate felony for the felony murder
conviction. Id. at 14. Cunningham filed a petition for allowance of appeal
with the Pennsylvania Supreme Court, but the petition was denied on March
30, 2011. Commonwealth v. Cunningham, 20 A.3d 484 (Pa. 2011).
On December 27, 2011, Cunningham timely filed a pro se PCRA
petition. Counsel was appointed, and she filed an amended PCRA petition on
June 11, 2012. On August 21, 2012, Cunningham filed a pro se motion
seeking to terminate PCRA counsel’s representation. On August 29, 2012,
Cunningham filed a pro se motion to amend the PCRA petition to add new
claims. On September 24, 2012, PCRA counsel filed a motion for a Grazier3
hearing to determine whether Cunningham knowingly and voluntarily wished
to proceed pro se. On October 12, 2012, PCRA counsel filed a supplement
to the amended PCRA petition, raising three additional claims that
Cunningham included in his motion to amend.
On April 25, 2013, the PCRA court held a hearing on the PCRA petition.
The PCRA court first asked Cunningham whether he still wished to represent
himself and he declined. Notes of Testimony (“N.T.”), 4/25/2013, at 2-3.
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3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Counsel then presented argument. No testimony was taken. Following the
hearing, on May 20, 2013, the PCRA court granted Cunningham’s motion to
appoint a fingerprint expert. On November 6, 2013, PCRA counsel filed a
“Notice of Status of Defense Expert’s Review of Print Evidence.” In that
filing, PCRA counsel averred that the copy of the evidence had been
provided to the defense expert and that “[n]o further argument or
supplemental matter [would] be submitted by the defense regarding the
print evidence.” Notice of Status of Defense Expert’s Review of Print
Evidence, 11/6/2013, at 1.
On November 7, 2013, the PCRA court denied Cunningham’s petition.
On November 15, 2013, Cunningham filed a notice of appeal and concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On December 17, 2013, the trial court filed its Pa.R.A.P. 1925(a) opinion.
On January 30, 2014, PCRA counsel filed a petition to withdraw as counsel.
In the Turner/Finley brief, counsel identifies four potential issues:
1. Whether [trial counsel] was ineffective for failing to file a
motion to sever, for purposes of trial, [Cunningham’s] case
from Co-Defendant Surratt’s case?
2. Whether [trial counsel] was ineffective by failing to present an
expert to challenge the reliability of the fingerprint/hand-print
evidence?
3. Whether [Cunningham’s] mandatory sentences of life in
prison without parole, which prohibits the court from
considering mitigating factors, is unconstitutional under
Article I, Section 13 of the Pennsylvania Constitution, the
Eighth and Fourteenth Amendments to the United States
Constitution, Article 5 of the Universal Declaration of Human
Rights and/or Article 7 of the International Covenent on Civil
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and Political Rights and whether failure to apply the decision
of Miller v. Alabama, --- U.S. ---, 132 S. Ct. 2455 (2012) to
the instant matter constitutes a violation of the equal
protection clauses of the United Stated and Pennsylvania
Constitutions?
4. Whether [Cunningham’s] convictions and sentences are illegal
and must be vacated and [Cunningham] discharged where
the statutes defining the offenses and authorizing sentence
are void for failure to contain the enacting clause set forth
and mandated by/under 1 Pa.C.S. § 1101(a)?
Turner/Finley Brief at 3.
First, we must consider whether PCRA counsel has complied with the
requirements for appointed counsel to withdraw pursuant to Turner and
Finley. We previously have explained this procedure as follows:
Counsel petitioning to withdraw from PCRA representation must
proceed under [Turner/Finley and] . . . must review the case
zealously. Turner/Finley counsel must then submit a “no-
merit” letter to the trial court, or brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review of the
case, listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed
pro se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy
the technical demands of Turner/Finley, the court — trial court
or this Court — must then conduct its own review of the merits
of the case. If the court agrees with counsel that the claims are
without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations
omitted).
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Here, PCRA counsel has filed a Turner/Finley brief. Counsel listed
the issues Cunningham wished to raise. Turner/Finley Brief at 3. Counsel
attested to her diligent review of the record. Id. at 19. Counsel then
thoroughly reviewed each issue and concluded that each was without merit.
Id. at 22-35. Counsel also sent a letter to Cunningham, stating that she
had filed a petition to withdraw and enclosing the petition and
Turner/Finley brief. Letter, 1/30/2014. In the letter, counsel also advised
Cunningham of his right to proceed pro se, hire new counsel, and/or file a
supplemental brief. Id. Counsel has attached the letter to her petition to
withdraw.
We conclude that PCRA counsel has complied substantially with the
Turner/Finley requirements. However, before passing upon PCRA counsel’s
motion to withdraw, we must conduct our own independent review of the
record.
Our standard of review of a PCRA court order is as follows:
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.
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Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)
(internal citations omitted).
Here, Cunningham’s first two issues are ineffective assistance of
counsel (“IAC”) claims. IAC claims are governed by the following standard:
In Pennsylvania, counsel is presumed effective, and a defendant
bears the burden of proving otherwise. In order to be entitled to
relief on a claim of ineffective assistance of counsel, the PCRA
petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying claim has arguable merit;
(2) counsel whose effectiveness is at issue did not have a
reasonable basis for his action or inaction; and (3) the PCRA
petitioner suffered prejudice as a result of counsel’s action or
inaction. When determining whether counsel’s actions or
omissions were reasonable, we do not question whether there
were other more logical course of actions which counsel could
have pursued: rather, we must examine whether counsel’s
decisions had any reasonable basis. Further, to establish
prejudice, a petitioner must demonstrate that but for the act or
omission in question, the outcome of the proceedings would
have been different. Where it is clear that a petitioner has failed
to meet any of the three, distinct prongs . . ., the claim may be
disposed of on that basis alone, without a determination of
whether the other two prongs have been met.
Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations and
internal quotation marks omitted; emphasis in original).
The first issue raised is that trial counsel was ineffective for failing to
seek to sever Cunningham’s trial from that of his co-defendants.
Turner/Finley Brief at 22. With regard to when defendants may be tried
together, Rule 582 states in pertinent part:
Defendants charged in separate indictments or informations may
be tried together if they are alleged to have participated in the
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same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.
Pa.R.Crim.P. 582(A)(2).
Whether to grant a motion for severance is within the trial
court’s sound discretion and “should not be disturbed absent a
manifest abuse of discretion.” [Commonwealth v. Chester,
587 A.2d 1367, 1372 (Pa. 1991)]. Chester noted joint trials are
preferred where conspiracy is charged. Severance may be
proper where a party can establish the co-defendants’ defenses
are so antagonistic that a joint trial would result in prejudice.
Id., at 1372–73. However, the party seeking severance must
present more than a mere assertion of antagonism:
[T]he fact that defendants have conflicting versions of what took
place, or the extents to which they participated in [the crime], is
a reason for rather than against a joint trial because the truth
may be more easily determined if all are tried together. . . .
Defenses become antagonistic only when the jury, in order to
believe the essence of testimony offered on behalf of one
defendant, must necessarily disbelieve the testimony of his co-
defendant.
Commonwealth v. Housman, 986 A.2d 822, 834 (Pa. 2009) (some
citations omitted).
Here, the crimes for which all of the defendants were charged arose
from the same series of acts that resulted in the illegal entry into Mr.
Middleton’s house and the deaths of Mr. Lyerly and Mr. Davis. Further, the
defenses offered were not so antagonistic as to require severance. The
defendants offered conflicting versions as to who entered the house, who
shot the victims, and what each intended upon arrival at Mr. Middleton’s
house. All questioned Ms. Burrell’s credibility. However, conflicting versions
as to what took place or the extent of involvements are not a reason to
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sever trial. See Housman, supra. Because the decision to try the
defendants jointly was supported by law and not an abuse of the trial court’s
discretion, there is no arguable merit to the underlying claim. Further, for
the same reasons, there was a reasonable basis for trial counsel not to
pursue a motion to sever the trials. Because there is no proof of either of
those prongs of the IAC claim, this issue has no merit.
Counsel next raises the issue that trial counsel was ineffective for
failing to present an expert witness to challenge the Commonwealth’s
fingerprint evidence. Turner/Finley Brief at 26. However, there is no
indication Cunningham suffered any prejudice, such that the outcome of the
proceeding would have been different. See Steele, supra.
Wayne Reutzel, a latent fingerprint examiner with the Allegheny
County crime lab, testified that a latent fingerprint and palm print were
found on the interior of the front storm door of Mr. Middleton’s home. Mr.
Reutzel was able to match the prints to a set of known prints from
Cunningham. N.T., 8/16-17/2007, at 13-14. Mr. Reutzel was unable to
match the prints to copies of Cunningham’s prints that were already in the
fingerprint index database. However, Mr. Reutzel explained that
Cunningham’s prior prints lacked sufficient detail, while the prints taken
after Cunningham’s arrest provided sufficient detail to make a reliable
comparison. Id. at 14, 16. There is no evidence to suggest that any other
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expert could have disputed the fingerprint evidence.4 Further, the
fingerprint evidence was not the only evidence that placed Cunningham at
the scene. While Ms. Burrell’s credibility was challenged, she testified that
Cunningham entered Mr. Middleton’s house. Absent evidence that a second
fingerprint expert could establish material doubt regarding Mr. Reutzel’s
testimony, Cunningham cannot satisfy the prejudice prong of the IAC
standard. Thus, this issue is also without merit.
PCRA counsel next addresses Cunningham’s contention that his
mandatory life sentence was prohibited for various reasons. Turner/Finley
Brief at 29-34. First, Cunningham argues that the court in sentencing
should have applied Miller v. Alabama, 132 S.Ct. 2455 (2012), which held
that mandatory life sentences without parole for juveniles were
unconstitutional. However, we have previously held that Miller does not
extend to adults or apply retroactively. Commonwealth v. Cintora, 69
A.3d 759, 764 & n.4 (Pa. Super. 2013). Here, Cunningham was twenty-
three years old at the time of the homicides and Miller was decided after his
conviction. This issue is without merit.
Cunningham next states that the failure to extend Miller was an equal
protection violation. However, we have often found that juveniles may be
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4
The PCRA Court provided Cunningham with an expert to evaluate the
fingerprint match in its May 20, 2013 order. PCRA counsel averred that the
expert received the information required to perform his evaluation.
However, Cunningham chose not to present that evaluation.
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treated differently than adults without violating the Constitution. See
Commonwealth v. Berry, 785 A.2d 994, 997 (Pa. Super. 2001) (“We are
mindful of the public policy that requires that juveniles be treated differently
from adult offenders.”); Commonwealth v. Sadler, 447 A.2d 625, 627 (Pa.
Super. 1982) (“[W]e believe that our Supreme Court could rationally adopt a
rule of criminal procedure . . . without applying that rule to juvenile
delinquency proceedings [and] we conclude that the equal protection clause
does not mandate that the rule [be applied to juveniles].”); see also
Commonwealth v. Batts, 66 A.3d 286, 290 (Pa. 2013) (quoting Miller for
“[t]he ‘foundational principle’. . . that ‘imposition of a State’s most severe
penalties on juvenile offenders cannot proceed as though they were not
children’”). Because the law may treat juveniles and adults differently
without implicating equal protection, this argument is without merit.
Cunningham also alleges a violation of Article 1, Section 13 of the
Pennsylvania Constitution, which prohibits cruel punishments, and the Eighth
and Fourteenth Amendments to the United States Constitution. First, we
have held that the rights under Article 1, Section 13 are co-extensive with,
and no broader than, those of the United States Constitution.
Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013), appeal
denied, 94 A.3d 1007 (Pa. 2014). The United States Supreme Court has
held that mandatory life sentences for adults do not run afoul of the Eighth
Amendment. See Rummel v. Estelle, 445 U.S. 263, 285 (1980)
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(upholding life sentence without parole under recidivist statute). This issue
also has no merit.
Finally, Cunningham cites the Universal Declaration of Human Rights.
However, the Supreme Court has recognized that the Declaration, while
stating principles, is not a treaty or international agreement and therefore
imposes no legal obligations. Sosa v. Alvarez-Machain, 542 U.S. 692,
734-35 (2004). Hence, it provides no legal authority to render
Cunningham’s sentence unconstitutional.
The last issue raised by PCRA counsel on behalf of Cunningham asserts
that his conviction and sentence are illegal because the statutes upon which
the conviction and sentence are based are void for failure to contain an
enacting clause. Turner/Finley Brief at 34. However, the Crimes Code
does contain the required enacting clause (“The General Assembly of the
Commonwealth of Pennsylvania hereby enacts as follows:”) prior to Section
1 of the Code. See 1972, P.L. 1482, No. 334. Therefore, this argument is
also meritless.
We have conducted our review of the record and find no issues of
merit. Therefore, we grant counsel’s petition to withdraw and affirm the
PCRA court’s order.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/2014
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