J-S29028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER LEE HARRIS
Appellant No. 1586 WDA 2014
Appeal from the PCRA Order September 17, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008631-2011
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 05, 2015
Appellant, Christopher Lee Harris, appeals from the September 17,
2014 order, denying his first petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we vacate and remand for further proceedings.
A prior panel of this Court summarized the relevant factual background
of this case as follows.
Harris lived with the victim, Alison Studvant,
on the 1500 block of Marlboro Avenue in
Wilkinsburg. N.T., 1/30/12, at 28. On July 1, 2011,
Harris, his girlfriend, the victim, and the victim’s
boyfriend, were drinking. Id. at 31. After the
victim’s boyfriend departed, the victim solicited
Harris and his girlfriend for a group sexual
encounter, and allegedly attempted to kiss Harris’s
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*
Retired Senior Judge assigned to the Superior Court.
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girlfriend. Id. at 31-35. Harris, angered by the
victim’s interaction with his girlfriend, and at the
sexual solicitation, began arguing with the victim.
Id. at 38. The victim then left the room, went into
the kitchen, returned with two knives, and began
swinging the knives around. Id. Harris then
approached the victim and attempted to disarm her.
Id. at 40. In the process of attempting to disarm
the victim, Harris was cut on the arm, cheek and
under his eye. Id. Harris and the victim continued
arguing, and when the victim left the room and went
upstairs, Harris leaned out of the front door and fired
four shots into the air. Id. at 40-41, 43. The victim
returned downstairs minutes later, and more arguing
ensued. Id. The victim continued swinging knives
and struck Harris in the wrist and face. Id. Harris
then took several steps backwards, and, although
aware of his opportunity to leave the premises,
raised his gun to the victim’s upper torso and fired
twice, striking her in the left breast. Id. at 93. The
victim slumped against the wall, and when she
attempted to regain her footing, Harris shot her in
the ankle. Id. at 93-94. The victim subsequently
died from her injuries.
Harris was arrested and charged with one
count of criminal homicide. Harris filed a pre-trial
motion to suppress his statements to the police,
which the trial court subsequently denied. On
February 1, 2012, at the conclusion of a jury trial,
Harris was found guilty of third-degree murder. [On
April 30, 2012, t]he trial court sentenced Harris to
10 to 20 years in prison, with credit granted for 304
days of time served. Subsequently, [on May 1,
2012,] Harris filed a [timely] post-sentence [m]otion
for a new trial, in which he challenged the sufficiency
and weight of the evidence supporting his conviction.
The trial court denied the [m]otion [on August 14,
2012].
Commonwealth v. Harris, 82 A.3d 1083 (Pa. Super. 2013) (unpublished
memorandum at 1-3), appeal denied, 81 A.3d 75 (Pa. 2013). Appellant filed
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a timely notice of appeal, and this Court affirmed Appellant’s judgment of
sentence on July 30, 2013. Id. Our Supreme Court denied Appellant’s
petition for allowance of appeal on December 4, 2013. Id. Appellant did
not seek a writ of certiorari from the United States Supreme Court.
On May 6, 2014, Appellant filed a timely pro se PCRA petition.
Therein, Appellant alleged that trial counsel provided ineffective assistance
at sentencing, specifically alleging the following.
[Trial counsel] had no reasonable basis for
suggesting [to the trial court] that [Appellant’s]
sentence [should] start above the standard range on
the guidelines where prior to making that
suggestion, [trial] counsel stated facts of
[Appellant]’s no prior criminal history[,] no run-in’s
[sic] with the police[,] leading the [trial] court to
consider the mitigating circumstances for a possible
mitigated sentence of seventy-eight (78) months.
Appellant’s PCRA Petition, 5/6/14, at ¶ 22. The PCRA court appointed
counsel, who on August 5, 2014, filed a petition to withdraw as counsel
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. The next day, on August 6, 2014, the
PCRA court entered two orders, one granting PCRA counsel’s petition to
withdraw and another issuing notice of its intent to dismiss Appellant’s
petition without a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 907. Appellant filed a timely pro se response on August 18, 2014,
in which he alleged that PCRA counsel was ineffective for misrepresenting his
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ineffectiveness claim to the PCRA court. Appellant’s Rule 907 Response,
8/18/14, at ¶ 10. On September 17, 2014, the PCRA court entered an order
dismissing Appellant’s PCRA petition without a hearing. On September 25,
2014, Appellant filed a timely pro se notice of appeal.1
On appeal, Appellant raises the following issue for our review.
I. Whether the [PCRA] court erred in dismissing
Appellant’s PCRA [petition] without an
evidentiary hearing where Appellant raised an
issue of arguable merit concerning sentencing
and PCRA counsel’s ineffectiveness[?]
Appellant’s Brief at 4.
We begin by noting 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 record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The 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 trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
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1
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
The Sixth Amendment to the Federal Constitution provides in relevant
part that, “[i]n all criminal prosecutions, the accused shall enjoy the right …
to have the Assistance of Counsel for his defence.”2 U.S. Const. amend. VI.
The Supreme Court has long held that the Counsel Clause includes the right
to the effective assistance of counsel. See generally Strickland v.
Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987).
In analyzing claims of ineffective assistance of counsel, “[c]ounsel is
presumed effective, and [appellant] bears the burden of proving otherwise.”
Fears, supra at 804 (brackets in original; citation omitted). To prevail on
any claim of ineffective assistance of counsel, a PCRA petitioner must allege
and prove “(1) the underlying legal claim was of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and (3) the
petitioner was prejudiced—that is, but for counsel’s deficient stewardship,
there is a reasonable likelihood the outcome of the proceedings would have
been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
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2
Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.
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2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence
fails to satisfy any one of these prongs.” Commonwealth v. Elliott, 80
A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.
Pennsylvania, 135 S. Ct. 50 (2014).
We also note that a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision dismissing a
petition without a hearing for an abuse of discretion. Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted), cert. denied, Roney
v. Pennsylvania, 135 S. Ct. 56 (2014).
[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.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal
citations omitted). “[A]n evidentiary hearing is not meant to function as a
fishing expedition for any possible evidence that may support some
speculative claim of ineffectiveness.” Roney, supra at 605 (citation
omitted).
Appellant’s argument in the instant appeal essentially is divided into
two parts. First, Appellant argues that “PCRA counsel was ineffective for
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misconstruing his sole PCRA issue as a challenge to the discretionary aspects
of sentencing.” Appellant’s Brief at 10. Second, Appellant argues that he is
entitled to an evidentiary hearing on his underlying claim of trial counsel
ineffectiveness. Id. at 13-14. We elect to address Appellant’s issues in
reverse order for ease of disposition.
In his second issue, Appellant argues that trial counsel was ineffective
when she “suggest[ed] a sentence 30-42 months above the minimum
and/or mitigated range sentence.” Appellant’s Brief at 11. Instantly, the
parties agree that Appellant’s prior record score was zero, and the offense
gravity score was 14. Commonwealth’s Brief at 20. Furthermore, with the
application of the deadly weapon enhancement, the standard range of the
guidelines was from 90 to 240 months’ imprisonment. After presenting
various witnesses and mitigating evidence, trial counsel stated the following
to the trial court.
Your Honor, as you can see from the Pre-sentence
Report, this is [Appellant’s] first contact with the
criminal justice system. Never arrested as a juvenile
or adult prior to this one. He did have a registered
firearm, license to carry that firearm.
This was definitely a tragic event that
occurred, probably one that could have been
avoided. I’m sure Your Honor recalls the testimony,
the testimony from the trial, and the level of
intoxication that was present in the victim; and that
certainly doesn’t excuse or explain this all. It’s just
another fact for the [trial c]ourt to consider.
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[Appellant] does have one short statement.
He would like to show remorse for what happened
here.
For those reasons, Your Honor, his guidelines
start at 90 months. I would suggest a sentence
starting at 120 months.
N.T., 4/30/12, at 9-10 (emphasis added). This was the sentence Appellant
received. Id. at 16.
Our research has not uncovered any cases in which a court has
examined this specific ineffectiveness claim. However, our cases have held
counsel to be ineffective when trial counsel fails to object to an erroneously
higher calculated standard guideline range. Commonwealth v. Barnes,
593 A.2d 868, 871 (Pa. Super. 1991); Commonwealth v. McMullen, 530
A.2d 450, 453 (Pa. Super. 1987). In our view, it follows, a fortiori, that a
claim of ineffectiveness that trial counsel affirmatively recommended that
the trial court impose a higher sentence than the lower end of the correct
standard range, likewise has arguable merit. One could argue that by doing
so, counsel is affirmatively advocating against her client’s interests, which is
potentially ineffective.
As noted above, the PCRA court in this case did not hold an evidentiary
hearing to ascertain whether trial counsel had any strategic reason for
recommending a ten-year sentence when the guidelines started at seven
and one-half years. It is not for this Court to speculate on this prong of the
Strickland/Pierce framework in the first instance. Nor do we have any
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basis upon which to ascertain whether Appellant suffered any prejudice, as
the trial judge who imposed the sentence, and who presided over the PCRA
proceedings, is now retired from the bench. Importantly, the trial judge
retired before he could author a Rule 1925(a) opinion in this case.
Given the state of the record, we conclude the best course of action is
to vacate and remand for the evidentiary hearing, so that trial counsel can
testify as to whether there was a reasonable basis for her recommendation.
After said hearing, the PCRA court can make a determination, based on the
full record, as to whether counsel had such a reasonable basis, and whether
Appellant suffered any prejudice.3
We next address Appellant’s claim of PCRA counsel ineffectiveness, as
it will affect his representation status on remand. As a first-order matter,
we note that this Court has held a PCRA petitioner may preserve a claim of
PCRA counsel ineffectiveness by raising it in response to the PCRA court’s
Rule 907 notice. Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.
Super. 2012). As Appellant did so here, we may address this argument on
appeal. See generally Appellant’s Rule 907 Response, 8/18/14, at ¶ 10.
Furthermore, a claim of PCRA counsel ineffectiveness requires Appellant to
satisfy the same three-prong test under the Strickland/Pierce framework.
Id. Here, Appellant argues that PCRA counsel was ineffective when she
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3
The Commonwealth notes at the end of its brief that it does not oppose a
remand for an evidentiary hearing. Commonwealth’s Brief at 27-28.
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misconstrued the ineffectiveness of counsel claim to the PCRA court.
Appellant’s Brief at 10, 12.
Appellant’s pro se PCRA petition only raised one claim, that trial
counsel was ineffective for recommending a higher sentence than the lower
end of the guidelines’ standard range. Appellant’s PCRA Petition, 5/6/14, at
¶¶ 20-24. However, in her Turner/Finley letter, PCRA counsel
characterized Appellant’s claim as one pertaining to trial counsel’s failure to
preserve a discretionary aspects of sentencing issue for his direct appeal.
[Trial counsel] did file a post-sentence motion and
direct appeal on [Appellant]’s behalf; she did not,
however, include a claim that the 120-month
minimum sentence imposed was excessive. On that
basis, an argument can be made, albeit futile, that
counsel rendered ineffective assistance for failing to
preserve the sentencing issue.
While counsel’s statement suggesting a 120-month
minimum sentence as opposed to a 90-month
minimum term may have been less than prudent,
the sentencing court exercised its discretion and
imposed a legal sentence, well within the standard
range of the Sentencing Guidelines. Accordingly,
even if a claim of ineffectiveness would have been
made relative to counsel’s failure to preserve the
discretionary sentencing issue for consideration, such
claim would fail.
PCRA Counsel’s Turner/Finley Letter, 8/6/14, at 5.4
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4
The Turner/Finley letter also discussed a claim regarding the United
States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004). Appellant has not raised that claim in this appeal.
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We agree with Appellant that PCRA counsel misconstrued his claim to
the PCRA court. On its face, Appellant’s PCRA petition directly accused trial
counsel of being ineffective, as counsel “had no reasonable basis for
suggesting that [Appellant’s] sentence to [sic] start above the standard
range on the guidelines ….” Appellant’s PCRA Petition, 5/6/14, at ¶ 22.
Appellant had not made any claim that trial counsel was ineffective for not
preserving the issue of whether the sentence recommended by trial counsel
was excessive. PCRA counsel’s Turner/Finley letter does not contain any
substantive discussion of the issue Appellant raised in his PCRA petition
except to call trial counsel’s recommendation “less than prudent[.]” PCRA
Counsel’s Turner/Finley Letter, 8/6/14, at 5.
Furthermore, in analyzing the second prong of Strickland, we fail to
see how misinterpreting Appellant’s claim to the PCRA court, in a
Turner/Finley letter or otherwise, furthers Appellant’s interests at all.
Therefore, we must conclude there could be no reasonable basis for PCRA
counsel to have taken this course of action in her Turner/Finley letter.
Finally, we conclude Appellant was prejudiced by PCRA counsel’s
Turner/Finley letter. In its Rule 907 notice, the only basis the PCRA court
gave for its notice of intent to dismiss without a hearing was PCRA counsel’s
Turner/Finley letter and its own review of the record. PCRA Court’s Rule
907 Notice, 8/6/14, at 1. In its final order dismissing Appellant’s petition,
the PCRA court based its decision to dismiss on PCRA counsel’s
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Turner/Finley letter, Commonwealth v. Moore, 653 A.2d 24 (Pa. Super.
1995), appeal dismissed, 684 A.2d 122 (Pa. 1996) and Commonwealth v.
Eaddy, 614 A.2d 1203 (Pa. Super. 1992), appeal denied, 626 A.2d 1155
(Pa. 1993). Moore dealt with a claim of ineffectiveness for failure to inform
the defendant that the Board of Probation and Parole could order his
sentences to run consecutively. Moore, supra at 25. Eaddy dealt with
non-ineffectiveness claims pertaining to sufficiency of the evidence and the
Speedy Trial Clause of the Sixth Amendment. Eaddy, supra at 1206. The
Commonwealth candidly concedes it does not understand the relevance of
these two cases, and neither do we. Commonwealth’s Brief at 25. Because
the PCRA court relied almost exclusively on PCRA counsel’s Turner/Finley
letter in deciding to dismiss without an evidentiary hearing, we conclude
Appellant was prejudiced by PCRA counsel’s performance. Therefore, on
remand, the PCRA court shall appoint new counsel for Appellant.
Based on the foregoing, we conclude that the PCRA court abused its
discretion in dismissing Appellant’s petition without first conducting an
evidentiary hearing. See Roney, supra. We further hold that PCRA
counsel rendered ineffective assistance in misconstruing Appellant’s claim of
ineffective assistance to the PCRA court. See Rykard, supra. Accordingly,
the PCRA court’s September 17, 2014 order is vacated, and the case is
remanded for further proceedings, consistent with this memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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Com. v. Harris, C.
Combined Opinion