J-S39004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAMONT SAUNDERS,
Appellant No. 2268 EDA 2013
Appeal from the PCRA Order July 29, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0700051-2003
BEFORE: BOWES, OTT AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 01, 2015
Lamont Saunders appeals from the July 29, 2013 order denying him
PCRA relief.1 We affirm.
On March 11, 2005, Appellant, together with his co-defendant Dallas
Saunders, was convicted at a jury trial of second-degree murder, robbery,
conspiracy to commit robbery, and possession of an instrument of crime for
his role in the November 27, 2002 shooting death of Douglas J. Comstock.
The facts underlying these convictions are as follows. On the night of
November 26, 2002, Mr. Comstock and his friend, Brian Patrick Kieffer,
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1
Appellant originally filed a pro se brief. Counsel thereafter filed an
appearance and asked for several extensions of time to file a brief.
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drove from New Jersey to Philadelphia in search of cocaine or heroin. They
viewed Dallas Saunders and Appellant standing on the corner of Mutter
Street and Indiana Street and decided to purchase drugs from them. Mr.
Kieffer identified Appellant at trial.
Mr. Comstock exited his car, spoke with Appellant, and went into an
alley with Appellant and Dallas. Mr. Kieffer, who was waiting in the car,
heard a gunshot and observed two men fleeing the alley. Angel Alvarez,
was on Mutter Street, heard an argument and then shots emanating from an
alley, and saw two males running from the alley. Mr. Alvarez obtained a
flashlight and found Mr. Comstock. Mr. Kieffer arrived on the scene, and Mr.
Alvarez told him that Mr. Comstock was dead and that he should flee. Mr.
Kieffer returned to his car and found a police officer.
At approximately 12:30 a.m. on November 27, 2002, Philadelphia
police responded to a broadcast about the shooting. They discovered Mr.
Comstock with a gunshot wound to the back of his head. On December 10,
2002, Jose Toro told a Philadelphia detective that a couple of days after the
shooting, he spoke with Appellant and Dallas. Appellant admitted to Toro
that he shot Comstock and stole his money. On January 9, 2003, Toro gave
police a written statement about Appellant’s confession, and Toro executed
it.
On March 11, 2005, Appellant was sentenced to life imprisonment, and
we affirmed on direct appeal. Commonwealth v. Saunders, 909 A.2d 887
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(Pa.Super. August 31, 2006). Allowance of appeal was denied on February
22, 2007. Commonwealth v. Saunders, 817 A.2d 314 (Pa. 2007).
Appellant filed a timely PCRA petition on October 15, 2007, and counsel,
John P. Cotter, Esquire, was appointed. Counsel filed an amended PCRA
petition on May 28, 2009. The PCRA court served notice of its intent to
dismiss the petition without a hearing, but Appellant objected and asked to
file an amended petition. On January 26, 2011, Mr. Cotter filed a second
amended PCRA petition. On September 16, 2011, Appellant filed a pro se
supplemental PCRA petition.
Mr. Cotter was permitted to withdraw, and J. Matthew Wolfe was
appointed as counsel. Mr. Wolfe filed a third amended PCRA petition, and
the Commonwealth was provided with an opportunity to respond to it. The
PCRA hearing was thereafter continued several times, with Commonwealth
ultimately filing an additional response to the third amended PCRA petition.
On June 12, 2013, Mr. Wolfe filed a petition to withdraw and no-merit letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
On June 19, 2013, the PCRA court issued notice of its intent to dismiss
the PCRA petition without a hearing, and, on July 29, 2013, dismissed the
petition and permitted counsel to withdraw. Appellant filed the present,
timely pro se appeal. New counsel, Coley O. Reynolds, Esquire, entered his
appearance and presents this issue for our review.
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I. Is Appellant, Lamont Saunders, entitled to an
evidentiary hearing to determine the validity of the
evidence presented by the Commonwealth to the
PCRA Court that led to the dismissal of his PCRA
petition when his PCRA counsel was ineffective by
failing to request that such an evidentiary hearing
take place?
Appellant’s brief at 4.2
Initially, we outline the applicable principles regarding our review of
the PCRA court’s determinations herein:
An appellate court reviews the PCRA court's findings of fact to
determine whether they are supported by the record, and reviews
its conclusions of law to determine whether they are free from
legal error. 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. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014)
(citation omitted).
In this appeal, Appellant charges PCRA counsel, Mr. Wolfe, with
ineffectiveness. Specifically, Appellant avers that Mr. Wolfe should have
requested an evidentiary hearing instead of filing a no-merit letter based on
the following set of events. Mr. Comstock was shot sometime during the
night of November 26, 2002, or the morning of November 27, 2002. Jose
Toro told police that, a few days after the incident, Appellant boasted that he
was the shooter.
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2
We note that this issue was preserved in Appellant’s response to the PCRA
court’s notice of its intent to dismiss the PCRA petition without a hearing.
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In his third amended PCRA petition, Appellant averred that Toro was
incarcerated when Appellant purportedly spoke with that witness and that
trial counsel was ineffective for failing to investigate Toro’s prison record to
impeach his testimony. The Commonwealth responded to the third
amended PCRA petition with Toro’s incarceration record from the
Philadelphia County prison system. That document established that Toro
was in jail on September 13, 2002, released on bail paid on September 19,
2002, and was not incarcerated again in Philadelphia County until December
11, 2002.
Appellant suggests on appeal that Toro was arrested again on
November 24, 2002,3 and that PCRA counsel was ineffective for failing to
investigate whether he remained in jail thereafter. Appellant avers that
PCRA counsel “was ineffective in his representation of Appellant during his
PCRA proceedings for failing to request an evidentiary hearing to determine
the validity of the Commonwealth’s incarceration record of Jose Toro.”
Appellant’s brief at 9. He suggests that there is a genuine issue of material
fact as to whether Toro was in jail two or three days after the November 27,
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3
The online docket sheets from the Criminal Division of the Court of
Common Pleas of Philadelphia County indicate that Toro was arrested on
that day for theft from a motor vehicle, unauthorized use of a motor vehicle,
and receiving stolen property.
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2002 shooting, which was when Appellant made his inculpatory remark to
Toro.
We evaluate Appellant’s position that PCRA counsel was ineffective
pursuant to the following precepts. “To plead and prove ineffective
assistance of counsel a petitioner must establish: (1) that the underlying
issue has arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from counsel's act or
failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa.Super.
2013) (en banc). The failure to meet any of these aspects of the
ineffectiveness test results in the claim failing. Id. A claim has arguable
merit where the factual predicate is accurate and “could establish cause for
relief.” Id. at 707. A determination as to whether the facts asserted
present a claim of arguable merit is a legal one. Id. It is presumed that
counsel renders effective representation.
The fatal flaw in Appellant’s position is that PCRA counsel did
investigate the matter and reported about it in his no-merit letter. Mr. Wolfe
knew that Toro was arrested on November 24, 2002. He went to investigate
whether Toro made bail in that case. Mr. Wolfe reported:
The District Attorney initially produced an extract of Mr.
Toro’s incarceration record in Philadelphia, which seemed to
indicate that he was released on bail on September 13, 2002,
and not jailed again until December 11, 2002. This did not make
sense, since we knew that Mr. Toro had been arrested and
incarcerated in November of 2002. The District Attorney next
produced another document that likewise was not particularly
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comprehensible. During this period of time, [Appellant]
indicated that a friend of his had spoken with a Mr. Daquilant in
the Criminal Justice Center who had said that Mr. Toro had not
made bail after his November arrest.
I went to the file room at the Criminal Justice Center to
see if I could find Mr. Daquilant, whom I could not find in the
city’s online directory of all city employees. I was told that no
one by that name worked there. I did ask if Mr. Toro had made
bail. They said that their computer did not say one-way or the
other. I reviewed the online docket myself and could not find
any information. I then reviewed the court’s fil[ing] for Mr. Toro
and the only document I found was the subpoena issued when
he made bail and was given a subpoena for court. That seemed
to be an indication that he made bail. I was directed to the bail
unit, which looked up their records and found that Mr. Toro had
made bail on November 24, 2002. I was given a printout to that
effect.
No-merit Letter of J. Matthew Wolf, 6/10/13, at (unnumbered page) 4.
Thus, Mr. Wolf ascertained both from Toro’s file and from the bail unit
that Toro made bail the same day as his arrest, November 24, 2002. Thus,
there is no genuine issue of material fact that the records produced by the
Commonwealth reporting that Toro was not incarcerated between November
24, 2002 and December 11, 2002 were inaccurate. Appellant confessed to
the killing a few days after the November 27, 2002 shooting.
A PCRA petitioner is not automatically entitled to an evidentiary
hearing:
The right to an evidentiary hearing on a post-conviction
petition is not absolute. A PCRA court may decline to hold a
hearing if the petitioner's claim is patently frivolous and is
without a trace of support in either the record or from other
evidence. A reviewing court on appeal must examine each of
the issues raised in the PCRA petition in light of the record in
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order to determine whether the PCRA court erred in concluding
that there were no genuine issues of material fact and denying
relief without an evidentiary hearing.
Commonwealth v. Payne, 794 A.2d 902, 906 (Pa.Super. 2002) (citation
omitted).
Since there is no genuine issue of material fact that Toro was not in
jail when Appellant confessed to him, Appellant is not entitled to PCRA relief
based on his present claim. Thus, PCRA counsel was not ineffective for
failing to request one.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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