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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CLARENCE HENRY HART
Appellant No. 871 EDA 2015
Appeal from the PCRA Order entered April 1, 2015
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001737-2009
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 13, 2016
Appellant Clarence Henry Hart (“Appellant”) appeals from the dismissal
of his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. § 9541 et seq. After careful review, we affirm.
On March 18, 2010, a jury convicted Appellant of robbery, 1 burglary,2
theft by unlawful taking,3 simple assault,4 criminal conspiracy to commit
robbery,5 and criminal conspiracy to commit burglary.6 The convictions
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1
18 Pa.C.S. § 3701(a)(1)(iv).
2
18 Pa.C.S. § 3502(a).
3
18 Pa.C.S. § 3921(a).
4
18 Pa.C.S. § 2701(a)(1).
5
18 Pa.C.S. § 3701(a)(1)(iv); 18 Pa.C.S. § 903.
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stemmed from a 2008 incident in which Appellant attacked and robbed an
83-year-old woman in her home. On July 6, 2010, the trial court sentenced
Appellant to 5 to 10 years’ incarceration on the robbery conviction, 10 to 20
years’ incarceration on the burglary conviction, 1 to 2 years’ incarceration on
the simple assault conviction, 10 to 20 years’ incarceration on the criminal
conspiracy to commit burglary conviction, and 5 to 10 years’ incarceration
on the criminal conspiracy to commit robbery conviction. The trial court
ordered all sentences to run consecutively, for an aggregate sentence of 31
to 62 years’ incarceration.
Appellant filed post-sentence motions challenging the sufficiency and
weight of the evidence and requesting the trial court reconsider and modify
the sentence imposed. The trial court denied Appellant’s post-sentence
motions on July 29, 2010. Appellant filed a direct appeal to this Court,
which affirmed his judgment of sentence on August 9, 2011. See
Commonwealth v. Hart, 2419 EDA 2010 (unpublished memorandum).
Appellant filed a petition for allowance of appeal, which our Supreme Court
denied on February 9, 2012.
Appellant filed a timely pro se PCRA petition on February 12, 2013.7
The PCRA court appointed counsel, who filed a Turner/Finley8 no merit
_______________________
(Footnote Continued)
6
18 Pa.C.S. § 3502(a); 18 Pa.C.S. § 903.
7
Because Appellant did not file a petition for allocatur to the Supreme Court
of the United States, his judgment of sentence became final on May 9, 2012,
(Footnote Continued Next Page)
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letter on April 16, 2013. The PCRA court conducted a hearing on May 16,
2013, at which counsel reiterated her conclusions from the Turner/Finley
letter that there was no legal basis on which to proceed with Appellant’s
PCRA petition. The PCRA court permitted counsel to withdraw. Appellant,
however, indicated his desire to proceed at a later date with the claims
contained in his PCRA petition. The PCRA court accordingly continued the
hearing until October 17, 2013, to give Appellant an opportunity to hire
private counsel or proceed pro se.
The PCRA court conducted a further evidentiary hearing on October
17, October 22, November 13, and December 4, 2013, with Appellant
proceeding pro se. Thereafter, in an effort to streamline Appellant’s issues
for review, the PCRA court directed Appellant to file an amended PCRA
petition on or before January 17, 2014, which date the court then extended
to July 21, 2014.
_______________________
(Footnote Continued)
90 days after the Supreme Court of Pennsylvania denied his petition for
allocatur. See 42 Pa.C.S. § 9545(b)(3) (“a judgment of sentence becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.”); see also
U.S.Sup.Ct.Rule 13.1 (allowing 90 days for the filing of a writ of certiorari in
the Supreme Court of the United States); Commonwealth v. Fairiror, 809
A.2d 396, 398 (Pa.Super.2002). 2012 was a Leap Year. Therefore,
Appellant had until May 9, 2013 to timely file his PCRA petition.
8
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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The PCRA court scheduled another evidentiary hearing for February
26, 2015. Appellant requested the PCRA court appoint him counsel to
proceed in his PCRA representation, which request the PCRA court denied on
February 4, 2015. Appellant appealed the denial of his request for the
appointment of counsel on February 25, 2015, the day before the scheduled
hearing.
At the February 26, 2015 hearing, the PCRA court again instructed
Appellant to file an amended PCRA petition, and cautioned Appellant his
failure to comply would result in the dismissal of his original petition.
Appellant failed to file an amended PCRA petition as instructed, and on April
1, 2015, the court filed an order dismissing Appellant’s PCRA petition,
together with a Rule 1925(a) opinion discussing Appellant’s appeal of the
court’s denial of Appellant’s request for the appointment of counsel.
Appellant appealed.9
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9
Appellant originally filed his notice of appeal on February 12, 2015 in
response to the PCRA court’s February 4, 2015 denial of his request for the
appointment of second PCRA counsel following his PCRA counsel’s
Turner/Finley letter. This appeal was not reviewable as interlocutory.
However, because the PCRA court denied Appellant’s PCRA petition on April
1, 2015, we treat Appellant’s interlocutory appeal as having been properly
and timely filed in response to the denial of his PCRA petition. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”). We have changed the
caption to reflect this procedural posture.
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In his pro se brief, filed with this Court on November 12, 2015,
Appellant raises the following issues for review:
I. Trial counsel was ineffective under the Sixth and Fourteenth
Amendment[s] of the United States Constitution and the
Pennsylvania Constitution for failing to investigate [Appellant’s]
mental health history and/or develop it as a possible defense
and/or trial strategy.
II. Trial counsel was ineffective under the Sixth and Fourteenth
Amendment[s] of the United States Constitution and the
Pennsylvania Constitution for failing to investigate and present
available mitigation evidence during [Appellant’s] sentencing
hearing.
III. Trial counsel was ineffective under the Sixth and Fourteenth
Amendment[s] of the United States Constitution and the
Pennsylvania Constitution for failing to present any mitigation
defense during the sentencing hearing.
IV. PCRA counsel was ineffective under the Sixth and Fourteenth
Amendment[s] of the United States Constitution and the
Pennsylvania Constitution for failing to adequately review
[Appellant’s] case files [sic] and/or challenge the deficient
stewardship of trial counsel.
V. [Appellant] also seeks to challenge the legality of the
mandatory minimum sentence that was imposed by the Court of
Common Pleas [of] Lehigh County.
Appellant’s Brief, pp. 10, 12, 13-14, 15 (unnecessary capitalization
removed).
Our standard of review is well-settled. “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 PCRA court’s findings will not be disturbed unless there is no support
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for the findings in the certified record.” Commonwealth v. Barndt, 74
A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations
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 Court reviews the
PCRA court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d
1080, 1084 (Pa.Super.2014) (citation omitted).
Pennsylvania courts apply the Pierce10 test to review claims of
ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in a
PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from ineffective
assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have
taken place. We have interpreted this provision in the PCRA to
mean that the petitioner must show: (1) that his claim of
counsel’s ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and (3) that
the error of counsel prejudiced the petitioner-i.e., that there is a
reasonable probability that, but for the error of counsel, the
outcome of the proceeding would have been different. We
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10
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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presume that counsel is effective, and it is the burden of
Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted). The petitioner bears the burden of
proving all three prongs of this test. Commonwealth v. Meadows, 787
A.2d 312, 319-320 (Pa.2001). “If an appellant fails to prove by a
preponderance of the evidence any of the Pierce prongs, the Court need not
address the remaining prongs of the test.” Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa.2010) (citation omitted).
Appellant first alleges trial counsel provided ineffective assistance by
failing to investigate and develop his mental history as a possible defense.
See Appellant’s Brief, pp. 10-12. This claim is waived.
Appellant did not raise this claim in his PCRA petition and neither
appointed counsel nor Appellant filed an amended petition. Appellant also
did not file a response to appointed counsel’s Turner/Finley letter.
Accordingly, Appellant waived this issue for appeal.11 See Pa.R.A.P. 302(a)
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11
We acknowledge that Appellant’s PCRA petition raised a claim that trial
counsel was ineffective for failing to inform the sentencing court at the time
of sentencing that Appellant’s mental health was impaired due to his
allegedly having refrained from food and drink for the previous ten days.
See PCRA Petition, Typed Portion, p. 2, ¶ 14. This claim, however differs
from Appellant’s claim that trial counsel provided ineffective assistance by
failing to investigate and develop a trial defense regarding Appellant’s
mental health history. See Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super.2008) (noting appellate court cannot review legal theory in
support of a claim unless that particular legal theory was presented to the
lower court).
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(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); see also Commonwealth v. Colavita, 993
A.2d 874, 891 (Pa.2010) (“[The Pennsylvania Supreme] Court has
consistently held that an appellate court cannot reverse a trial court
judgment on a basis that was not properly raised and preserved by the
parties.”).
Appellant’s next two claims allege trial counsel provided ineffective
assistance by failing to present mitigation witnesses at sentencing. See
Appellant’s Brief, pp. 12-24. This claim fails.
[I]n the particular context of the alleged failure to call
witnesses, counsel will not be deemed ineffective unless the
PCRA petitioner demonstrates: (1) the witness existed; (2) the
witness was available; (3) counsel knew of, or should have
known of[,] the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony was so prejudicial to petitioner to have denied him or
her a fair trial.
Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super.2012); see also
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.2009) (quoting
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa.2007)).
“Moreover, [the petitioner] must show how the uncalled witnesses’
testimony would have been beneficial under the circumstances of the case.”
Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa.2008).
Here, Appellant has not identified any individuals he alleges trial
counsel should have called on his behalf, whether trial counsel knew of such
persons’ existence or whether such individuals were willing to testify on
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Appellant’s behalf. Further, Appellant does not provide a statement or
affidavit from any possible witnesses or otherwise outline their expected
testimony to allow the PCRA court to determine whether the absence of the
witnesses’ testimony prejudiced Appellant. In short, Appellant has failed to
illustrate any of the five requirements proving ineffectiveness for a failure to
call a witness claim. As a result, Appellant’s ineffectiveness claim fails.
Next, Appellant claims PCRA counsel provided ineffective assistance of
counsel by failing to adequately review the record and raise trial counsel’s
inadequacies. See Appellant’s Brief, pp. 14-15. This claim is waived.
Claims of PCRA counsel ineffectiveness cannot be raised for the first
time on appeal. See Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa.Super.2014). Instead, such claims must be raised in response to PCRA
counsel’s Turner/Finley letter or in response to a PCRA court’s Pa.R.A.P.
Rule 907 notice of intent to dismiss. See Commonwealth v. Pitts, 981
A.2d 875, 880 n.4 (Pa.2009) (noting appellant’s failure to object to PCRA
counsel’s stewardship after receiving counsel’s withdrawal letter and the
notice of the PCRA court’s intent to dismiss his petition pursuant to
Pa.R.Crim.P. 907, results in waiver of PCRA counsel ineffectiveness claim).
Here, Appellant did not object to PCRA counsel’s performance in a
response to counsel’s Turner/Finley letter, the PCRA court’s notice of
intent to dismiss, or otherwise. Instead, Appellant attempts to bring his
claim of PCRA counsel ineffectiveness for the first time on appeal, and it is
accordingly waived.
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Finally, Appellant argues the imposition of a mandatory minimum
sentence resulted in an illegal sentence under Alleyne v. United States, --
U.S. ---, 133 S.Ct. 2151 (2013).12 See Appellant’s Brief, pp. 15-19. He is
incorrect.
A review of the record reveals the trial court did not impose any
mandatory minimum sentence on Appellant. Because Appellant was not
sentenced pursuant to any mandatory minimum statute, Alleyne does not
apply and affords Appellant no relief.
Appellant’s claims fail for the reasons stated above. 13 Accordingly, we
affirm the order of the PCRA court dismissing Appellant’s PCRA petition.
Order affirmed.
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12
In Alleyne, the Supreme Court of the United States held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2155.
13
To the extent Appellant further alleges the trial court erred in not
appointing PCRA counsel, we note that trial court did, in fact, appoint
counsel, who performed a conscientious review of the record and determined
Appellant’s issues were meritless. Following counsel’s Turner/Finley letter,
Appellant had a right to proceed with private counsel or pro se, which he did.
The PCRA court did not err by denying Appellant’s request to appoint new
counsel following counsel’s Turner/Finley letter and withdrawal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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