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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDRE GREEN
Appellant No. 1173 EDA 2013
Appeal from the PCRA Order April 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1007511-2005
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 25, 2015
Appellant, Andre Green, appeals from the April 8, 2013 order
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After careful review, we affirm.
The underlying facts are set forth in full in this Court’s memorandum
resolving Appellant’s direct appeal, and need not be reiterated in full here.
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1
The Commonwealth did not timely file a brief in this matter. The
Commonwealth’s brief was initially due on September 3, 2014. On
September 10, 2014, the Commonwealth filed an application for nunc pro
tunc first extension of time to file brief of Appellee. This court entered a per
curiam order extending the Commonwealth’s deadline to file a brief to
November 3, 2014, and advised that no further extensions would be
granted. On January 20, 2015, the Commonwealth filed a second
application for nunc pro tunc extension of time to file a brief, however, a
brief for the Commonwealth did not accompany this application. The
Commonwealth’s motion is denied.
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See Commonwealth v. Green, 951 A.2d 1210 (Pa. Super. 2008)
(unpublished memorandum at 2-3). Briefly, on June 12, 2004, Appellant
shot and killed Craig Dunston after Dunston attempted to intervene in a
verbal altercation between Appellant’s girlfriend, Tiffany Nelson, and Nicki
Doughty. Id. at 2. Appellant’s gunfire also hit bystander Taahirah Wesley.
Id.
On September 26, 2006, following a bench trial, Appellant was found
guilty of one count each of third-degree murder, aggravated assault,
recklessly endangering another person (REAP), and possessing instruments
of crime (PIC).2 On November 28, 2006, the trial court imposed an
aggregate sentence of 25 to 50 years’ incarceration.3 Appellant filed a
timely notice of appeal on November 30, 2006. On February 15, 2008, this
Court issued a memorandum decision, affirming the November 28, 2006
judgment of sentence. Id. at 3. Appellant did not file a petition for
allowance of appeal in our Supreme Court.
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2
18 Pa.C.S.A. §§ 2502(c), 2702(a), 2705, and 907(a), respectively.
3
Specifically, the trial court sentenced Appellant to 20 to 40 years’
incarceration for the conviction of third-degree murder. N.T., 11/28/06, at
19. On the aggravated assault conviction, the trial court imposed a
consecutive sentence of five to ten years’ incarceration. Id. at 19-20. The
trial court imposed sentences of one to two years’ incarceration on the REAP
conviction and one to five years’ incarceration on the PIC conviction, both to
run concurrent to the sentence for third-degree murder. Id. at 20.
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On July 31, 2008, Appellant filed a timely pro se PCRA petition, and
the trial court appointed counsel. On February 20, 2013, counsel filed a
motion to withdraw along with a “no-merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny.
Appellant did not respond to counsel’s Turner/Finley letter or the motion to
withdraw. On March 1, 2013, the PCRA court issued a dismissal notice
pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure.
Appellant did not respond to the Rule 907 dismissal notice. On April 5,
2013, the PCRA court granted PCRA counsel’s motion to withdraw and
dismissed Appellant’s PCRA petition.4 Thereafter, on April 18, 2013,
Appellant filed a timely pro se notice of appeal.5
On appeal, Appellant raises the following issues for our review.
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4
We note that the certified record does not contain the April 5, 2013 order.
However, the docket statement contains an entry noting the April 5, 2013
order was entered dismissing Appellant’s PCRA petition and granting
counsel’s motion to withdraw. This Court has made an effort to obtain said
order, but it is unavailable. Nevertheless, because Appellant notes that the
PCRA court permitted counsel to withdraw, and Appellant does not challenge
counsel’s withdrawal in this appeal, our review is not hindered. Appellant’s
Brief at vii. Additionally, an order dated April 8, 2013, which is in the
certified record, also dismisses the PCRA petition, and contains a footnote
providing that “[Appellant] may proceed pro se or with retained counsel; no
new counsel is to be appointed.” PCRA Court Order, 4/8/13, at 1 n.1.
5
Appellant and the PCRA court have complied with Rule 1925 of the
Pennsylvania Rules of Appellate Procedure.
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A. Whether trial counsel was ineffective for failing
to investigate whether a Commonwealth
witness was coerced by police to select
[Appellant’s] photograph during a photo array
session?
B. Whether appelate [sic] counsel was ineffective
for failure to perfect an appeal?
C. Whether the PCRA court misapprehended the
law relating to post conviction relief?
D. Whether PCRA consel [sic] was ineffective for
failing to file an amend[ed] PCRA petition
advancing the claims Appellant requested
counsel to raise, as well as for failing to seek
to have Appellant’s appeal rights reinstated
nunc pro tunc?
Appellant’s Brief at v (some capitalization removed and italics added).6
The following principles guide our review of an appeal from the denial
of PCRA relief.
On appeal from the denial of PCRA relief, our
standard and scope of review is limited to
determining whether the PCRA court’s findings are
supported by the record and without legal error.
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
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6
We have reordered the issues that Appellant raises for purposes of our
review.
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Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted, -
-- A.3d ---, 2014 WL 6991663 (Pa. 2014). Further, in order to be eligible for
PCRA relief, a petitioner must plead and prove by a preponderance of the
evidence that his conviction or sentence arose from one or more of the
errors listed at Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2).
These errors include ineffectiveness of counsel. Id. § 9543(a)(2)(ii). These
issues must be neither previously litigated nor waived. Id. § 9543(a)(3).
In this case, the PCRA court dismissed Appellant’s PCRA petition
without conducting a hearing. We review such a decision for an abuse of
discretion. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Id., quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super.
2007) (internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007);
see also Pa.R.Crim.P. 907. “The controlling factor … is the status of the
substantive assertions in the petition. Thus, as to ineffectiveness claims in
particular, if the record reflects that the underlying issue is of no arguable
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merit or no prejudice resulted, no evidentiary hearing is required.”
Commonwealth v. Baumhammers, 92 A.3d 708, 726-727 (Pa. 2014)
(citations omitted).
Each of Appellant’s issues alleges ineffective assistance of counsel.
When reviewing a claim of ineffective assistance, we apply the following test,
first articulated by our Supreme Court in Commonwealth v. Pierce, 527
A.2d 973 (Pa. 1987).
When considering such a claim, courts
presume that counsel was effective, and place upon
the appellant the burden of proving otherwise.
Counsel cannot be found ineffective for failure to
assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 329 (Pa. 2011).
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Before we reach the merits of Appellant’s claims, we must first
determine if he has preserved the issues for our review. We conclude that
Appellant has waived the majority of his claims either by failing to include
them in his Rule 1925(b) statement or by not raising them in the PCRA court
or on direct appeal. First, our Supreme Court has definitively held that Rule
1925(b) is a bright-line rule, and any issues not raised in a Rule 1925(b)
statement must be deemed waived. Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011). In his first claim, Appellant asserts, in part, that his trial
counsel was ineffective at the preliminary hearing. Appellant’s Brief at 6-8.
However, Appellant did not raise this issue in his Rule 1925(b) statement.
Accordingly, we deem this issue waived. See Hill, supra.
Next, “[i]t is well-settled that ‘issues not raised in a PCRA petition
cannot be considered on appeal.’” Commonwealth v. Ousley, 21 A.3d
1238, 1242 (Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011),
quoting Commonwealth v. Lauro, 819 A.2d 100, 104 (Pa. Super. 2003),
appeal denied, 830 A.2d 975 (Pa. 2003). In his first issue, Appellant also
claims trial counsel was ineffective for not attempting to interview Christine
Martin in preparation for trial. Appellant’s Brief at 8. In his second issue,
Appellant alleges appellate counsel was ineffective for failing to “perfect an
appeal” by failing to file a petition for allowance of appeal with our Supreme
Court. Id. at 9. Moreover, in his third issue, he claims the PCRA court erred
in concluding he waived these issues. Id. at 2-3, 5. Appellant did not
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include any of these issues in his PCRA petition or any of his additional filings
with the PCRA court. Instead, he raised them for the first time in his Rule
1925(b) statement and appellate brief, respectively. Accordingly, we
conclude Appellant has waived these issues, and is due no relief. See
Ousley, supra.
Further, in his third issue, Appellant argues the PCRA court erred by
finding his claim of a Brady7 violation waived for failure to raise them on
direct appeal. Id. at 4. Appellant contends that the prosecutor failed to
disclose the circumstances of the allegedly coerced photo identification by
Martin. Id. We agree with the PCRA court that Appellant has waived this
claim as it could have been raised on direct appeal as Appellant
acknowledges that the Commonwealth disclosed the aforementioned
evidence on the day of trial. See Appellant’s Brief at 4; see also 42
Pa.C.S.A. § 9544(b); Commonwealth v. Roney, 79 A.3d 595, 609 (Pa.
2013) (finding Brady claim is waived when appellant failed to raise the issue
at trial or on direct appeal and did not argue counsel could not have
uncovered those violations through reasonable diligence), cert. denied,
Roney v. Pennsylvania, 135 S. Ct. 56 (2014).
Moreover, in his fourth issue, Appellant contends PCRA counsel was
ineffective. A claim of ineffectiveness of PCRA counsel cannot be raised for
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7
Brady v. Maryland, 373 U.S. 83 (1963).
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the first time on appeal. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.
Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014). Instead,
issues of PCRA counsel ineffectiveness must be raised in a response to a
PCRA court’s Rule 907 notice or in a serial PCRA petition. Id. at 29.
Appellant did not respond to either his appointed counsel’s Finley letter or
the court’s Rule 907 notice. Appellant also did not raise PCRA counsel’s
ineffectiveness in his 1925(b) statement. Instead, Appellant raised the issue
for the first time in his appellate brief. We recognize that Appellant was still
represented by PCRA counsel, who had filed a Finley no merit letter, at the
time the Rule 907 notice was issued and that the PCRA time bar may be an
obstacle to future PCRA petitions. However, these circumstances do not
alter the aforesaid requirement. “We are cognizant that failing to address
PCRA counsel effectiveness claims for the first time on appeal renders any
effective enforcement of the rule-based right to effective PCRA counsel
difficult at the state level.” Id. Accordingly, we conclude that Appellant’s
allegations of PCRA counsel ineffectiveness are not reviewable. See id. at
30.
In the only issue preserved for our review, part of Appellant’s second
issue, he argues appellate counsel was ineffective for filing a deficient brief
with this Court in his direct appeal that did not preserve his appellate rights.
Appellant’s Brief at 10-12. However, while the panel of this Court deciding
Appellant’s direct appeal noted his “claim comes perilously close to being
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waived for failure to comply with Pa.R.A.P. 2119,” this Court nonetheless
decided the appeal on the merits. See Green, supra at 3 n.1. Accordingly,
this issue is not of arguable merit and fails as it does not meet the first
prong of the Pierce test. See Michaud, supra; Birdsong, supra.
For the foregoing reasons, we conclude Appellant’s issues on appeal
are either waived or without merit. Therefore, discerning no error or abuse
of discretion by the PCRA court, we affirm the April 8, 2013 order dismissing
Appellant’s PCRA petition without a hearing.
Order affirmed. Motion denied.
Judge Olson joins this memorandum.
Judge Wecht concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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Com. v. Green, A.
Combined Opinion