J-S04006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CURTIS A. SHEERER,
Appellant No. 1802 WDA 2014
Appeal from the PCRA Order October 8, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-00002942-2012
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016
Curtis A. Sheerer appeals pro se from the October 8, 2014 order
denying his first timely PCRA petition after counsel was permitted to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc)
(“Turner/Finley”). We affirm.
A jury found Appellant guilty of aggravated assault on July 23, 2013.
Appellant, despite notice, failed to appear for sentencing. The court
sentenced Appellant in his absence on September 17, 2013. It imposed a
sentence of seven and one-half to fifteen years incarceration. Appellant did
not file an appeal. The underlying facts of this matter are as follows.
*
Retired Senior Judge assigned to the Superior Court.
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The victim, James McCoy, was at the Lakeside Tavern, in Erie County,
with Kim Schmidt on the evening of June 13, 2012. Mr. McCoy and Ms.
Schmidt were friends and, according to Mr. McCoy, dating at that time.
Appellant was previously romantically involved with Ms. Schmidt. Mr. McCoy
also had dated a woman named Tabitha Bromley, who at the time of both
the incident and trial in this matter was dating Appellant. Ms. Bromley
arrived at the bar and began to order drinks for Mr. McCoy. According to Mr.
McCoy, Ms. Bromley was attempting to rekindle their prior relationship. Ms.
Schmidt telephoned Appellant and told him to come pick up his girlfriend,
Ms. Bromley. Appellant arrived, displeased with Mr. McCoy and Ms.
Bromley. Appellant chased Mr. McCoy around the parking lot of the bar
before Mr. McCoy left in his vehicle. Ms. Bromley had also entered Mr.
McCoy’s car and left the bar with him. Appellant then began to chase Mr.
McCoy and Ms. Bromley in his vehicle. Mr. McCoy pulled into a car
dealership and turned his car lights off and Appellant passed him.
Mr. McCoy and Appellant did not have additional contact with one
another that night. The next day, Ms. Bromley called Mr. McCoy and invited
him to come to the home of Jennifer Bailey, with whom Ms. Bromley was
staying at the time. Mr. McCoy arrived at Ms. Bailey’s home around 6:00
p.m. Ms. Bromley and her twenty-year old daughter, Samantha, were
present. Ms. Bailey was inside preparing dinner and another person named
Richard Fahey was also inside.
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While Mr. McCoy and Ms. Bromley were outside smoking cigarettes,
and Samantha Bromley was also present, Appellant came around the corner
of the home and punched Mr. McCoy on the left side of his face, causing four
fractures and the loss of three teeth. Specifically, Mr. McCoy suffered two
acute sinus fractures and two orbital fractures. The blow to Mr. McCoy’s face
caused him to stumble toward the house. Although Mr. McCoy did not see
who struck him, when he turned around he saw Appellant. Appellant then
ran around the house. Ms. Bailey did not witness the attack, but she did see
a person she believed was Appellant, running away from her home. She
provided a written statement to police identifying Appellant as the person
who fled from her home, but acknowledged at trial that she did not see his
face.
Mr. McCoy called 911 and Officer David Pernice arrived to investigate.
Mr. McCoy identified Appellant as his attacker. Ms. Bromley also informed
Officer Pernice that Appellant had punched Mr. McCoy. She then transported
Appellant to the hospital. At trial, however, Ms. Bromley, who as mentioned,
was dating Appellant, declined to identify him as the assailant. 1 Similarly,
Samantha Bromley testified that Appellant was walking down the side of the
Bailey house after Mr. McCoy was struck in the face. However, she had
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1
The Commonwealth also introduced Facebook posts from Ms. Bromley to
Mr. McCoy, in which Ms. Bromley indicated that Appellant hit Mr. McCoy on
the day in question.
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earlier provided a written statement to police indicating that Appellant
punched Mr. McCoy.
Ms. Schmidt testified that she received two text messages from
Appellant on June 14, 2012. The first message arrived at 6:39 p.m. and
read, “I just punched James in the mouth.” N.T., 7/23/13, at 49. Ms.
Schmidt received a second message from Appellant at 6:45 p.m., which
stated, “I just dropped him in one hit.” Id. When questioned by trial
counsel as to whether she sent the messages herself, she denied it. Based
on this evidence, the jury found Appellant guilty of aggravated assault. The
court imposed the aforementioned sentence on September 17, 2013.
As noted, Appellant did not file a direct appeal.2 However, on June 20,
2014, Appellant filed his underlying pro se PCRA petition. The PCRA court
appointed counsel, who filed a Turner/Finley no-merit letter and petition to
withdraw. The PCRA court granted counsel’s petition to withdraw and
provided Rule 907 notice of its intent to dismiss Appellant’s petition.
Appellant filed a response and the PCRA court dismissed his petition.
Appellant filed a timely notice of appeal and the PCRA court directed
Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Appellant complied by filing a boilerplate concise
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2
PCRA counsel addressed this issue in his Turner/Finley no-merit letter.
Appellant does not contest that he was denied his direct appeal rights in this
matter.
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statement that parroted the PCRA statute but did not raise any specific
issues. The PCRA court issued an order indicating that the concise
statement’s lack of specificity precluded it from authoring a decision
addressing Appellant’s claims. The matter is now ready for our
consideration. Appellant presents three issues for our review.
A. Was Appellant denied effective assistance of counsel,
whereby, his trial attorney offered no defense when there was
[a] defense available?
B. Should the lower court have given Appellant an evidentiary
hearing on “newly discovered evidence”?
C. Was Appellant denied access to the court by not giving him
(under court order of this Honorable Court, see attached
Exhibit “B”, whereby he requested verious [sic] documents,
police reports, witnesses statements and testimony
transcripts?
Appellant’s brief at 2.
In reviewing a PCRA appeal, we consider the record “in the light most
favorable to the prevailing party at the PCRA level.” Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In performing this
review, we consider the evidence of record and the factual findings of the
PCRA court. Id. We afford “great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have no support in
the record.” Id. Accordingly, so long as a PCRA court’s ruling is free of
legal error and is supported by record evidence, we will not disturb its
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decision. Id. Where the issue presents a question of law, “our standard of
review is de novo and our scope of review is plenary.” Id.
Preliminarily, we agree with the PCRA court’s conclusion that
Appellant’s issues in his Rule 1925(b) statement were boilerplate and that,
because they lacked specificity, it could not address his claims. Appellant’s
Rule 1925(b) concise statement set forth the following issues verbatim:
A. Ineffictive [sic] assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjuication [sic] of
guilt or innocence could have taken place.
B. The inavailability [sic] at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been
introduce[d].
C. The improper obstruction by government officials of the
petitioner’s right of appeal where a meritorious appealable
issue existed and was properly preserved in the records, and
D. A violation of the Constitution of this Commonwealth and the
Constitution of the United States which, in the circumstances
of the particular cause [sic], so undermined the truth-
determining process that no relable [sic] adjudocation [sic] of
guilt or innocence could have taken place.
Appellant’s Pa.R.A.P. 1925(b) concise statement, 11/10/14. These issues
merely repeated subsections of the PCRA statute. As Appellant failed to
adequately preserve his first two issues in his Rule 1925(b) statement, they
are waived; further, they are without merit. Insofar as Appellant’s third
issue leveled on appeal contends that he was not provided the necessary
transcripts to effectuate his appeal, we find that he is not entitled to relief.
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Appellant argues that he was not supplied with his preliminary hearing
or trial transcripts. First, we note that Appellant’s claims do not relate to his
preliminary hearing; moreover, Appellant could not establish actual
prejudice relative to issues that transpired at his preliminary hearing. See
Commonwealth v. Stultz, 114 A.3d 865 (Pa.Super. 2015). To the extent
Appellant claims that his trial transcripts were not provided, we acknowledge
that both the PCRA court and this Court entered orders directing that
Appellant be provided with his trial transcripts.
The Commonwealth posits in its brief that it provided a copy of its file
to Appellant without the transcript and avers that original PCRA counsel
turned over his file to Appellant. Even assuming Appellant did not receive
his transcripts from either the PCRA court or PCRA counsel, he does not
argue how this omission prejudiced him in his ability to address his merits
based arguments.
Appellant’s first issue on appeal relates to trial counsel not presenting
certain witnesses, permitting inculpatory text messages he sent that were
purportedly not turned over in discovery into evidence, and that another
person admitted to committing the assault. The only portion of Appellant’s
argument that relates to evidence that would have been part of the
transcript pertains to the text messages. There is no dispute by the parties
or in the record regarding those communications. Thus, the alleged lack of a
trial transcript could not have prejudiced Appellant’s ability to address his
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issue. Appellant’s contention is that the messages were not contained in
discovery. PCRA counsel below inquired into this matter and learned from
trial counsel that these messages were provided in discovery. Further,
additional evidence demonstrated that Appellant struck the victim in this
matter.
Similarly, the absence of a transcript would have little impact on
Appellant’s ability to litigate his extra-record ineffectiveness claim relative to
counsel’s failure to present certain witnesses. “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. In considering whether counsel acted reasonably, we do not use a
hindsight analysis; rather, an attorney’s decision is considered reasonable if
it effectuated his client’s interests. Id. Only where “no competent counsel
would have chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success[,]” will counsel’s
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strategy be considered unreasonable. Id. Finally, actual prejudice exists if
“there is a reasonable probability that, but for counsel's errors, the result of
the proceeding would have been different.” Id. It is presumed that counsel
renders effective representation.
Where the issue involves an attorney’s failure to call a witness, the
petitioner must prove: (i) the witness existed; (ii) the witness was available
to testify; (iii) counsel knew of, or should have known of, the existence of
the witness; (iv) the witness was willing to testify; and (v) the absence of
the testimony was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011);
Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009).
In his brief, Appellant specifically refers to Johnathan Schwab and
Forest Vannucci. These men, according to Appellant, would offer testimony
that another person, Bobby McClelland, admitted to them to striking the
victim.3 This evidence, if introduced for its truth, would be inadmissible
hearsay.4 Thus, the evidence could only be introduced as possible
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3
There was testimony at trial that Mr. McClelland, eighteen years old at the
time of the incident, was present in the area. However, no one identified
him as the attacker. Mr. McClelland is now deceased.
4
It is unclear whether Mr. McClelland was deceased at the time of trial,
thereby implicating the statement against interest exception to the hearsay
rule. However, such a statement must be supported by corroborating
circumstances that clearly indicate trustworthiness. See Pa.R.E. 804(b)(3).
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impeachment evidence. Appellant does not develop any argument in this
regard and every witness to the incident either identified Appellant as the
assailant at one time, or acknowledged that he fled the area after the
assault.
As to unnamed other witnesses whom Appellant claims would have
testified that the victim had a disreputable character and angered other
people who would have had a motive to assault the victim, his failure to
identify these witnesses is fatal. Furthermore, Appellant has neglected to
proffer any admissible testimony that these alleged witnesses could have
provided.
Appellant’s second issue leveled on appeal also does not require the
trial transcript to materially advance his position. That claim argues that he
learned of newly-discovered evidence in the nature of information from
Johnathan Schwab that another individual struck the victim and that Mr.
Schwab’s mother, Kim Schmidt, lied at trial about the text messages.5 The
initial portion of Appellant’s claim is inconsistent with his first issue where he
alleges counsel was ineffective for failing to present Mr. Schwab. Moreover,
Appellant fails to indicate in any manner how this evidence could not have
been ascertained prior to trial.
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5
Appellant’s theory is that Kim Schmidt, the mother of Johnathan Schwab,
and Appellant’s former girlfriend, kept Appellant’s cell phone, and somehow
knew of the attack and then texted herself from Appellant’s phone.
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This Court has explained in the PCRA context that a “petitioner must
plead and prove by a preponderance of the evidence ‘the unavailability at
the time of trial of exculpatory evidence that has subsequently become
available and would have changed the outcome of the trial if it had been
introduced.’ 42 Pa.C.S. § 9543(a)(2)(vi).” Commonwealth v.
Foreman, 55 A.3d 532, 537 (Pa.Super. 2012). In addition, this Court has,
in Commonwealth v. Padillas, 997 A.2d 356 (Pa.Super. 2010), opined
that a petitioner must show the evidence “(1) could not have been obtained
prior to the conclusion of the trial by the exercise of reasonable diligence;
(2) is not merely corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.” Id. at 363; see also Commonwealth
v. Walker, 36 A.3d 1, 14 n.17 (Pa. 2011). Failure to satisfy any of these
aspects of the test results in the claim failing. Padillas, supra at 363.
Mr. Schwab’s proffered testimony that another person admitted to
committing the crime and that his mother stated that she lied at trial also
would be hearsay if introduced for its truth. Further, after-discovered
evidence claims generally cannot succeed if the evidence will be used solely
for impeachment purposes. In sum, Appellant’s first two issues are both
waived and without merit and his final issue does not entitle him to relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2016
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