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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SIMEON SPENCE
Appellant No. 2905 EDA 2013
Appeal from the PCRA Order September 3, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009338-2009
BEFORE: OLSON, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED APRIL 22, 2015
Simeon Spence appeals pro se from the Montgomery County Court of
Common Pleas’ order dated September 3, 2013, denying his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 1 without conducting an
evidentiary hearing. On appeal, Spence seeks relief from the April 19, 2011,
judgment of sentence of an aggregate term of eight to 19 years’
imprisonment, after he was found guilty by a jury of corrupt organizations,2
conspiracy to commit corrupt organizations,3 and two counts of possession
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S § 911(b)(2).
3
18 Pa.C.S § 911(b)(4).
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with intent to deliver (“PWID”),4 criminal conspiracy to violate the Controlled
Substance, Drug, Device and Cosmetic Act,5 criminal attempt to commit
PWID,6 two counts of possession,7 and three counts of criminal use of
communications facility.8 On appeal, Spence raises five issues asserting trial
court error, trial counsel’s ineffectiveness, and appellate counsel’s
ineffectiveness. Also before this Court are an Application for Remand
Pursuant to Pa.R.A.P. 123, and a Post-Submission Communication. For the
reasons set forth below, we affirm the PCRA court’s order and deny both the
application for remand and post-submission communication.
Spence’s convictions arose from his involvement in a cocaine
trafficking ring in Norristown, Pennsylvania, which was headed by Dontay
Brewer, and which stored a large quantity of drugs at Craig Cole’s house. 9
Spence was characterized as a street-level drug dealer. Spence appealed
his judgment of sentence, which was affirmed on May 24, 2012, and his
____________________________________________
4
35 P.S. § 780-113(a)(30).
5
18 Pa.C.S. § 903, 35 P.S. § 780-113(a)(30).
6
18 Pa.C.S. § 901, 35 P.S. § 780-113(a)(30).
7
35 P.S. § 780-113(a)(16).
8
18 Pa.C.S. § 7512.
9
Spence was tried jointly with his co-defendant, Brewer. The facts
underlying Spence’s convictions are set forth in detail in the trial court’s July
15, 2011, opinion, which was entered and adopted by a panel of this Court
on Spence’s direct appeal. See Trial Court Opinion, 7/15/2011, at 2-5.
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petition for allowance of appeal was denied on January 10, 2013.
Commonwealth v. Spence, 50 A.3d 250 [1177 EDA 2011] (Pa. Super.
2012) (unpublished memorandum), appeal denied, 62 A.3d 379 (Pa. 2013).
On April 10, 2013, Spence filed a pro se PCRA petition, raising multiple
issues relating to the sufficiency of the evidence, trial court error regarding
jury instructions, and the denial of effective assistance of trial counsel. The
court appointed counsel, who subsequently filed a petition to withdraw, and
included therein a no-merit letter under Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). See Petition for Leave of Court to Withdraw as
PCRA Counsel, 8/19/2013. The no-merit letter, dated August 16, 2013,
detailed why the issues in Spence’s pro se petition were entirely without
merit. The PCRA court granted counsel’s motion to withdraw and entered a
Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing on
August 22, 2013.
Spence then filed a pro se response on August 28, 2013, alleging that
PCRA counsel never contacted him to discuss the claims made in the petition
and never provided him with a copy of the “no-merit” letter and motion to
withdraw. On September 3, 2013, the PCRA court dismissed Spence’s
petition, stating:
After this Court’s independent review of the record and
consideration of [Spence]’s response to the notice of intent to
dismiss; and
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For all the reasons set forth in the court-appointed “no
merit” letter, we conclude that [Spence]’s PCRA Petition is
devoid of merit and that no purpose would be served by any
further proceedings[.]
Order Sur Defendant’s Motion under Post-Conviction Relief Act, 9/3/2013.10
This pro se appeal followed.11
Initially, we must determine whether the present appeal is timely. The
order from which Spence appeals was dated September 3, 2013, and
docketed on the following day. Spence is incarcerated, and his notice of
appeal was docketed on October 22, 2013, which was well past the 30-day
appeal period. See Pa.R.A.P. 903(a) (“[T]he notice of appeal ... shall be
filed within 30 days after the entry of the order from which the appeal is
taken.”). Generally, “[u]pon receipt of the notice of appeal the clerk shall
immediately stamp it with the date of receipt, and that date shall constitute
the date when the appeal was taken, which date shall be shown on the
docket.” Pa.R.A.P. 905(a)(3).
Under the “prisoner mailbox rule,” a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing. See
generally, Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super
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10
Counsel filed a second petition to withdraw, which the PCRA court
dismissed as moot in its September 12, 2013, order.
11
On October 2, 2013, the PCRA court ordered Spence to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Spence filed a concise statement on October 17, 2013. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 20, 2013.
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2006). However, to avail oneself of the mailbox rule, a prisoner must supply
sufficient proof of the date of the mailing. See Commonwealth v. Jones,
700 A.2d 423 (Pa. 1997); Commonwealth v. Perez, 799 A.2d 848 (Pa.
Super. 2002) (documentation required to support when notice of appeal was
placed in the hands of prison authorities for filing).
Here, Spence dated the notice of appeal on September 30, 2013, and
the postmark attached to the notice of appeal is dated the same day. Based
on the record, and applying the “prisoner mailbox rule,” we conclude that
Spence has provided sufficient proof that he filed a timely notice of appeal
on September 30, 2013. We will now turn to the merits of Spence’s
arguments.
Spence raises the following five questions for our review:
1. Did the trial court err in determining that the claim that
relates to the sufficiency of the evidence had been previously
litigated thereby precluding PCRA relief?
2. Was trial counsel ineffective in failing to request written
instructions be provided to the jury and did the trial court abuse
it’s [sic] discretion and commit a plain error by not providing
written instructions when the jury specifically requested they be
provided with written instructions?
3. Did [the] trial court render an ineffective assistance of
counsel by failing to subpoena Craig Cole to testify given that his
sworn affidavit was not permitted to be presented to the jury?
4. Was appellate counsel ineffective in failing to present a
substantive argument regarding the sufficiency claim and by
failing to pursue appellate review of trial counsel’s failures as
they relate to the jury instruction claim and the failure to
subpoena Cr[ai]g Cole?
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5. Was Court appointed PCRA counsel ineffective [in]
investigating the claims made in the pro se PCRA Petition,
contact or interview [Spence], investigate the Cole affidavit, or
amend the Petition in any way?
Spence’s Brief at 6.
We begin with our well-settled standard of review: “In reviewing the
denial of PCRA relief, we examine whether the PCRA court's determination is
supported by the evidence and free of legal error.” Commonwealth v.
Thomas, 44 A.3d 12, 16 (Pa. 2012) (citation omitted).
To be eligible for PCRA relief, the petitioner must prove by a
preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated circumstances set
forth at 42 Pa.C.S. § 9543(a)(2) (including the ineffective
assistance of counsel). Additionally, the petitioner must
demonstrate that the issues raised in his PCRA petition have not
been previously litigated or waived. Id. § 9543(a)(3). An issue
has been previously litigated if “the highest appellate court in
which the petitioner could have had review as a matter of right
has ruled on the merits of the issue.” Id. § 9544(a)(2). A PCRA
claim is waived “if the petitioner could have raised it but failed to
do so before trial, at trial, during unitary review, on appeal or in
a prior state post-conviction proceeding.” Id. § 9544(b).
Commonwealth v. Elliott, 80 A.3d 415, 426-427 (Pa. 2013).12
Based on the nature of his claims, Spence’s first and fourth issues are
interrelated and, therefore, we will address them together. In his first issue,
Spence claims the PCRA court erred in determining that his sufficiency
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12
Moreover, we are mindful that “although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers
no special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa. Super. 2003) (citation omitted), appeal denied, 879 A.2d 782
(Pa. 2005).
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argument had been “previously litigated,” thereby precluding PCRA relief.
Spence’s Brief at 6, 9. However, a closer look at his argument reveals that
the crux of his claim is directed at PCRA counsel’s ineffectiveness in failing to
advance Spence’s sufficiency claim in “legally acceptable terms.” Id. at 10.
For that reason, Spence contends the issue was not previously litigated. Id.
He states “it is simply untrue that the trial court[] set for[th] ‘an accurate
assessment’ of the evidence” in its July 15, 2011, direct appeal opinion
because the court’s analysis included a determination that there was
sufficient evidence to support a conviction for PWID, relating to a crime that
occurred on October 16, 2009, when the jury specifically found him not
guilty of that crime on that date. Id. at 11. He avers that PCRA counsel
should have objected to such a finding. Id. at 12. In Spence’s fourth issue,
he again reiterates his argument that counsel was ineffective for failing to
advance his sufficiency claim with “relevant litigation” and “case citations.”
Id. at 16-17.
With respect to a claim of ineffective assistance of counsel, we are
guided by the following:
It is well-settled that 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. Strickland v. Washington, 466 U.S. 668,
687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court
has described the Strickland standard as tripartite by dividing
the performance element into two distinct components.
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
(Pa. 1987). Accordingly, to prove trial counsel ineffective, the
petitioner must demonstrate that: (1) the underlying legal issue
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has arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) the petitioner was prejudiced by
counsel’s act or omission. Id. A claim of ineffectiveness will be
denied if the petitioner’s evidence fails to satisfy any one of
these prongs.
Elliott, 80 A.3d at 426.
A review of the record reveals the following. The jury found Spence
guilty of PWID for events that took place on October 11, 2009 and October
19, 2009, but not guilty of PWID for a crime that occurred on October 16,
2009. See N.T., 1/27/2011, at 142-143. The court only sentenced Spence
on two PWID convictions. See N.T., 4/17/2011, at 13. However, in the
court’s July 15, 2011, opinion, which addresses Spence’s direct appeal
claims, the court found there was sufficient evidence to support a conviction
for the October 16, 2009, crime. See Trial Court Opinion, 7/15/2011, at 16-
17.
Nevertheless, the court’s misstatement had no effect on Spence
because he was only convicted and sentenced for the two PWID crimes, and
not for the crime that took place on October 16, 2009. As such, Spence has
failed to demonstrate the “prejudice” prong of the Strickland/Pierce test.
See Elliott, 80 A.3d at 426. Accordingly, Spence’s first and fourth issues do
not merit relief.
In Spence’s second argument, he claims trial counsel was ineffective
by not requesting that the jury be provided with written instructions and the
trial court erred in failing to provide such instructions when requested by the
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jury. In support, he cites Pennsylvania Rule of Criminal Procedure 646.13
Spence’s Brief at 12. He states, “It is clear that in a multiple count
indictment, an effective assistance of counsel would have included
requesting written instructions of the elements of the offenses be provided
to jury.” Id. Spence alleges that because the jury requested written jury
instructions, “they did not understand the elements necessary to constitute
an offense[.]” Id. at 13. Moreover, he contends “the trial judge abused his
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13
Rule 646 provides, in relevant part:
(B) The trial judge may permit the members of the jury to have
for use during deliberations written copies of the portion of the
judge’s charge on the elements of the offenses, lesser included
offenses, and any defense upon which the jury has been
instructed.
(1) If the judge permits the jury to have written copies of the
portion of the judge’s charge on the elements of the offenses,
lesser included offenses, and any defense upon which the jury
has been instructed, the judge shall provide that portion of the
charge in its entirety.
(2) The judge shall instruct the jury about the use of the written
charge. At a minimum, the judge shall instruct the jurors that
(a) the entire charge, written and oral, shall be given equal
weight; and
(b) the jury may submit questions regarding any portion of
the charge.
Pa.R.Crim.P. 646 (emphasis added).
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discretion by failing to provide[] a written description of the charges as
requested by the jury.” Id. at 14.
To the extent that Spence argues the trial court erred in failing to
provide the jury with written instructions, we note this issue should have
been raised during Spence’s direct appeal, but he did not do so. As such, it
is deemed waived under the PCRA. See 42 Pa.C.S. §§ 9543(a)(3), 9544(b)
(“For purposes of this subchapter, an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state postconviction proceeding.”).14
Furthermore, with respect to Spence’s argument regarding counsel’s
ineffectiveness, a review of Spence’s brief reveals that he fails to develop
any discussion regarding the three prongs of the ineffective test. See
Spence’s Brief at 12-15; see also Elliott, 80 A.3d at 426. Moreover, as the
PCRA court properly analyzed:
In this case, at the start of jury deliberations this Court
alerted defense counsel to Pa.R.Crim.P. 646, stating that th[e]
rule allows a trial court to provide the jury with written
instructions during their deliberations. This Court at that time
stated that it would leave it up to counsel whether to request
that or leave it for the Court to reread … any jury instructions
that the jury had a question about. During deliberations, the
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14
Moreover,“[i]n order to be eligible for relief, a PCRA petitioner must
establish by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated defects found in 42 Pa.C.S. §
9543(a)(2)[.]” Commonwealth v. Smith, 17 A.3d 873, 882 (Pa. 2011).
Spence has not pled that the trial court’s error with respect to the jury
instruction falls under one of those enumerated provisions.
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jury came back with the question of whether they would be able
to get a written description of what constitutes each charge. The
Court declined to do so, answering the jury that it was not
possible at that time due to that most of the charge was
handwritten and not in a form ready to be sent out with the jury.
The jury did come back later with a request for clarification on
corrupt organizations, conspiracy to commit corrupt
organizations and conspiracy to violate the Drug Act. The Court
reread those portions of the jury charge.
While it is true that trial counsel did not request that the
jury be provided with the written jury instructions, [Spence]
cannot show that the failure to do so caused actual prejudice,
i.e., that there is a reasonable probability that counsel’s actions
affected the outcome of the proceedings. Here, the jury came
back several times with various questions and in particular
questions concerning certain portions of the charge. The jury
was conscientious in following the Court’s instructions and asked
questions when they were uncertain. [Spence] has not shown
but for trial counsel’s failure to request that the written jury
instructions be sent out with the jury during deliberations that
the result of the trial would have been different. Therefore, this
claim must be rejected.
PCRA Court Opinion, 11/20/2013, at unnumbered 7-8 (record citations
omitted). We agree with the court’s determination, and conclude that
Spence’s second claim is unavailing.
Next, Spence argues trial counsel was ineffective for failing to
subpoena a witness, Craig Cole, to testify because his sworn affidavit was
not permitted to be presented to the jury. Spence’s Brief at 15. Without
any description of what the witness would have testified to, Spence states:
“It is clear in the case at bar that [the ] witness testimony … would
exonerate [Spence and] would have changed the outcome of the trial.
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Indeed this exculpatory witness testimony would be the only direct evidence
applicable to [Spence] in the entire trial.” Id. at 16.
Before we may address the merits of this claim, we must determine
whether Spence has failed to properly preserve the claim, as indicated by
the PCRA court. See PCRA Court Opinion, 11/20/2013, at unnumbered 9
([T]his is the first time [Spence] has raised this issue.”). A review of the
record reveals that this claim was not raised in Spence’s pro se PCRA
petition. Because he raised this issue for the first time on appeal, it is
waived. See 42 Pa.C.S. § 9544(b); Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”); Commonwealth v. Williams, 899 A.2d 1060, 1066 n. 5 (Pa.
2006) (waiving issues appellant did not raise in PCRA petition). Accordingly,
we need not address the argument further.
Lastly, in Spence’s fifth claim, he asserts PCRA counsel rendered
ineffective assistance of counsel in failing to do the following: (1) contact
him prior to requesting to withdraw; (2) amend the PCRA petition; and (3)
thoroughly investigate the claims made therein. Spence’s Brief at 17. He
states that counsel failed to amend the pro se petition in any way and failed
to forward him a copy of the Turner/Finley “no-merit” letter. Id. at 18.
Moreover, Spence alleges that PCRA counsel did not contact him prior to
September 4, 2013, despite sending several letters requesting that “PCRA
counsel engage in a dialogue regarding the issues.” Id. at 19. Additionally,
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he argues the PCRA court erred in finding his ineffective assistance of PCRA
counsel claim waived for failing to raise the claim in his response to the Rule
907 notice because “it is unreasonable to demand that [Spence] raise claims
of PCRA counsel’s ineffectiveness in the Response given the ‘no merit’ letter
was not filed contemporaneously but rather, after the Response was drafted
and the PCRA [petition] dismissed.” Id. at 21.
The record reveals that counsel served the petition to withdraw and
Turner/Finley “no-merit”letter on Spence. See Petition for Leave of Court
to Withdraw as PCRA Counsel, 8/19/2013 (“Certificate of Service”). In its
September 3, 2013, order, that denied Spence PCRA relief, the PCRA court
accepted this documentation as sufficient evidence of service. See Order
Sur Defendant’s Motion under Post-Conviction Relief Act, 9/3/2013.
Moreover, it bears mentioning PCRA counsel did write an eight-page “no
merit” letter, thoroughly addressing all of the claims Spence asserted in his
pro se PCRA petition and accompanying memorandum. See Petition for
Leave of Court to Withdraw as PCRA Counsel, 8/20/2013 (Exhibit A,
8/16/2013 Turner/Finley Letter). Furthermore, we note Spence does not
set forth what issues, besides his prior sufficiency argument, that he wanted
counsel to include in an amended PCRA petition.15 Likewise, other than bald
assertions, Spence does not discuss how he was prejudiced by PCRA
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15
As discussed above, his sufficiency argument provides him no relief.
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counsel’s failure to amend his PCRA petition and he does not explain how the
outcome of the proceedings would have been different if his counsel had
amended the PCRA petition. See Commonwealth v. Lassen, 659 A.2d
999, 1007 (Pa. Super. 1995) (holding that “[a]bstract allegations of
ineffective assistance of counsel unsubstantiated by reference to specifics
are not considered on appeal”); Commonwealth v. Albrecht, 720 A.2d
693, 701 (Pa. 1998) (“If it is clear that Appellant has not demonstrated that
counsel’s act or omission adversely affected the outcome of the proceedings,
the claim may be dismissed on that basis alone and the court need not first
determine whether the first and second prongs have been met.”).
Therefore, Spence has not demonstrated the arguable merit or prejudice
prongs of the ineffective assistance of counsel test, and accordingly, we find
his final argument of PCRA counsel’s ineffectiveness to be without merit.
We now turn to Spence’s March 26, 2014, “Application for Remand
Pursuant to Pa.R.A.P. 123,” requesting that we remand the matter based
upon newly discovered evidence in the form of an exculpatory sworn
statement made by his co-defendant, Dontay Brewer. See Application for
Remand Pursuant to Pa.R.A.P. 123, 3/26/2014. Based on our disposition
that Spence’s present PCRA petition was denied properly by the PCRA court,
we deny his request to remand the matter without prejudice to raise this
issue in a PCRA petition, should he so choose. See Commonwealth v.
Lark, 746 A.2d 585, 588 (Pa. 2000) (“[W]hen an appellant’s PCRA appeal is
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pending before a court, a subsequent PCRA petition cannot be filed until the
resolution of review of the pending PCRA petition by the highest state court
in which review is sought, or upon the expiration of the time for seeking
such review…. The subsequent petition must also be filed within sixty days
of the date of the order which finally resolves the previous PCRA petition,
because this is the first “date the claim could have been presented.” 42
Pa.C.S. § 9545(b)(2).”).
Lastly, Spence filed a document with this Court, which he referred to a
“post-submission communication.” We reject his submission, as having
been filed without application and/or permission. See Pa.R.A.P. 2501(a)
(“After the argument of a case has been concluded or the case has been
submitted, no brief, memorandum or letter relating to the case shall be
presented or submitted, either directly or indirectly, to the court or any
judge thereof, except upon application or when expressly allowed at bar at
the time of the argument.”); Commonwealth v. Robinson, 12 A.3d 477,
482 n.4 (Pa. Super. 2011).
Order affirmed. Application for Remand Pursuant to Pa.R.A.P. 123
denied without prejudice. Post-Submission Communication denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2015
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