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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
QUASHEAM RICHBURG, : No. 3252 EDA 2015
:
Appellant :
Appeal from the PCRA Order, August 28, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010714-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 20, 2016
Quasheam Richburg appeals, pro se, from the order of August 28,
2015, dismissing his PCRA1 petition. We affirm.
The PCRA court has summarized the history of this matter as follows:
On June 17, 2013, [appellant] voluntarily,
intelligently, and knowingly entered a negotiated
guilty plea to the charges of Murder of the Third
Degree (F1), Robbery (F1), Conspiracy to Commit
Robbery (F1), Carrying Firearms Without a License
(“VUFA § 6106”) (F3), and Possession of Instrument
of Crime (M1) on bill of information CP-51-CR-
0010714-2011.[2][Footnote 1] Following the plea,
this court sentenced [appellant] to the negotiated
* Former Justice specially assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. §§ 2502(c), 3701(a)(1)(i), 903, 6106(a)(1), and 907(a),
respectively.
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aggregate sentence of 30-60 years of incarceration.
[Footnote 2]
[Footnote 1] [Appellant] also entered a
negotiated guilty plea to the charge of
VUFA § 6106 (F3) on bill of information
CP-51-CR-0004625-2011.[3]
[Footnote 2] [Appellant] filed a post-
sentence motion pertaining to his
custodial placement for medical
treatment, which this court granted on
June 18, 2013.
On May 28, 2014, [appellant] filed the instant
PCRA petition. PCRA counsel was appointed and, on
April 24, 2015, counsel filed a Finley[Footnote 3]
Letter. The matter was first listed before this court
for decision on June 19, 2015. On June 19, 2015,
following a review of the record, this court sent
[appellant] a 907 Notice, pursuant to Pa.R.Crim.P.
907(1). This court did not receive any response to
the 907 Notice. On August 28, 2015 this court
dismissed the PCRA petition.
[Footnote 3] [Commonwealth] v.
Finley, 550 A.2d 213, 215 (Pa.Super.
1988) [(en banc)].[4]
Trial court opinion, 8/28/15 at 1-2 (underlining emphasis in original). On
August 28, 2015, appellant’s PCRA petition was dismissed and appointed
counsel, Mitchell S. Strutin, Esq., was granted leave to withdraw. A timely
3
The charges related to the May 26, 2011 murder of Moustafa H. Shaker, a
grocery store clerk. During the course of a robbery perpetrated by appellant
and his co-defendant, Marvell Hargrove (“Hargrove”), appellant shot the
victim in the head with a 12-gauge shotgun. Hargrove pled guilty to
third-degree murder, robbery, and criminal conspiracy, and was sentenced
to 20-40 years’ imprisonment.
4
See also Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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pro se notice of appeal was filed on September 24, 2015. Appellant was not
ordered to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b); however, on November 6, 2015, the PCRA
court filed an opinion.
Appellant has raised the following issues for this court’s review:
I. Whether a remand is warranted because the
PCRA court erred in allowing [Attorney Strutin]
to withdraw from appellant’s case by filing a
[Turner/Finley] letter, and to give appellant
the opportunity with effective counsel to
develop [the] claim concerning the firing and
charges brought against lead detective Ron
Dove for corruption, who was responsible for
gathering evidence against appellant?
II. Whether the PCRA court erred by dismissing
appellant’s ineffective assistance of trial
counsel claim without holding a hearing based
on issues of corruption charges against the
lead detective Ron Dove who was responsible
for collecting crucial evidence that led to the
charging of appellant?
III. Whether a remand is warranted to allow
appellant the appointment of counsel, to
determine if appellant was capable of
intelligently and knowingly entering into a
guilty plea due to his physical status, i.e., [in
the] days and weeks leading up to [the] plea
appellant had numerous surgeries for lympho
gland cancer which he was receiving
chemotherapy for, and was heavily medicated?
Appellant’s brief at 1 (capitalization omitted).
“When reviewing an order [granting or] denying PCRA relief, we must
determine whether the PCRA court’s determination is supported by the
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record and is free from legal error.” Commonwealth v. Poplawski, 852
A.2d 323, 327 (Pa.Super. 2004) (citation omitted).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super. 2001). 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. Id.
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. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007), quoting Commonwealth v.
Khalifah, 852 A.2d 1238, 1239-1240 (Pa.Super. 2004).
To prevail on a claim that counsel was
constitutionally ineffective, the appellant must
overcome the presumption of competence by
showing that: (1) his underlying claim is of arguable
merit; (2) the particular course of conduct pursued
by counsel did not have some reasonable basis
designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the challenged
proceeding would have been different. A failure to
satisfy any prong of the test for ineffectiveness will
require rejection of the claim.
Commonwealth v. Malloy, 856 A.2d 767, 781 (Pa. 2004) (citations
omitted). “We presume counsel is effective and place upon Appellant the
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burden of proving otherwise. Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Poplawski, 852 A.2d at 327
(citations omitted).
In his first issue on appeal, appellant alleges that appointed PCRA
counsel, Attorney Strutin, was ineffective. (Appellant’s brief at 6-7.) As the
Commonwealth recognizes, this claim is being presented for the first time on
appeal. (Commonwealth’s brief at 6 n.3.) Appellant did not file any
response to counsel’s Turner/Finley letter or a response to the PCRA
court’s Rule 907 notice. (Id.) Appellant cannot raise allegations of counsel
ineffectiveness for the first time on appeal and was required to raise them
within 20 days following Rule 907 notice. Commonwealth v. Pitts, 981
A.2d 875 (Pa. 2009). Therefore, appellant’s allegation of PCRA counsel’s
ineffectiveness is deemed waived. Furthermore, counsel complied with the
requirements for withdrawal as set forth in Turner/Finley, and the PCRA
court determined that there were no potentially meritorious issues which
could be raised in a counseled amended PCRA petition.5
5
Appellant claims that due to his medical condition, he was unable to file a
response to Rule 907 notice. (Appellant’s brief at 9.) However, we note
that appellant was able to file a timely pro se PCRA petition, notice of
appeal, and a brief. Nor did appellant request an extension of time within
which to file a response to Rule 907 notice due to his medical condition. At
any rate, the underlying issue, that unrelated allegations of criminal
wrongdoing against one of the investigating officers in appellant’s case
warrants PCRA relief, is patently without merit for the reasons discussed
infra.
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Next, appellant claims that he should be allowed to withdraw his plea
on the basis of after-discovered evidence.6
To obtain relief based upon newly-discovered
evidence under the PCRA, a petitioner must establish
that: (1) the evidence has been discovered after
trial and it could not have been obtained at or prior
to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used
solely to impeach credibility; and (4) it would likely
compel a different verdict.
Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004), citing
Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa. 1998) (additional
citation omitted).
Appellant relies on a March 3, 2014 newspaper article concerning
Detective Ronald Dove, who investigated appellant’s case. (PCRA petition,
6
We recognize that appellant pled guilty rather than choosing to go to trial.
Ordinarily, a plea of guilty waives all defects and defenses except lack of
jurisdiction, legality of the sentence, and the validity of the plea.
Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super. 2008)
(citation omitted). However, in Commonwealth v. Peoples, 319 A.2d 679
(Pa. 1974), the Pennsylvania Supreme Court held that an after-discovered
evidence claim is available to a defendant who pleads guilty.
We are of the opinion that any after-discovered
evidence which would justify a new trial would also
entitle a defendant to withdraw his guilty plea. It
would be incongruous to allow a defendant a new
trial on the basis of after-discovered evidence when
he has already had one trial, but to deny him a new
trial on the basis of such evidence merely because
he had originally decided not to go to trial, but plead
guilty, perhaps because he did not have the
additional evidence.
Id. at 681.
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5/28/14, Exhibit B; Docket #D7.) According to the article, Detective Dove
was fired from the Philadelphia police force amid allegations that he helped
his girlfriend, Erica Sanchez, flee the city after she murdered her
ex-boyfriend. (Id.) The newspaper article, in and of itself, is not
“evidence.” Furthermore, there is no allegation that Detective Dove acted
improperly in investigating appellant’s case. As the PCRA court observed,
“the allegations against Detective Dove are confined to conduct stemming
from a personal matter and are not averments of widespread corruption.”
(PCRA court opinion, 8/28/15 at 5.) Although appellant alleged that
Detective Dove was “not providing credible information,” he failed to specify
what misleading information Detective Dove provided. (Id.) Recently, this
court addressed a similar issue relating to an after-discovered evidence
claim based on the allegations surrounding Detective Dove:
We acknowledge that in [Commonwealth v.
Castro, 93 A.3d 818, 821 (Pa. 2014)], our Supreme
Court held that allegations in a newspaper article “do
not constitute evidence” and thus, were not sufficient
to support a motion for an evidentiary hearing or a
new trial. The Supreme Court specifically stated:
[a]llegations in the media, whether true
or false, are no more evidence than
allegations in any other out-of-court
situation. Nothing in these allegations
even read in the broadest sense, can be
described as “evidence,” and references
to the officer being under investigation
for misconduct contains no information
regarding what evidence existed to
substantiate this averment. One cannot
glean from these bald allegations what
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evidence of misconduct appellee
intended to produce at the hearing.
Castro, [] 93 A.3d at 825. As “an evidentiary
hearing is not meant to function as a fishing
expedition for any possible evidence that may
support some speculative claim,” the Supreme Court
concluded that Castro “needed to do more than
present an article pointing to allegations that if true
have the potential to aid his cause; he needed to
clearly articulate in his motion what evidence he
would present to meet the test.” Id. at [] 828.
Commonwealth v. Brown, 134 A.3d 1097, 1108-1109 (Pa.Super. 2016).
With respect to the allegations regarding
Detective Dove, Appellant solely relies on the
newspaper article reporting on Dove’s possible
misconduct and does not articulate what evidence he
would present at the evidentiary hearing on remand.
In accordance with Castro, the article concerning
Detective Dove does not constitute after-discovered
evidence that entitles Appellant to a new trial.
Id. at 1109.
In addition, as the Commonwealth points out, the only conceivable
purpose in presenting Detective Dove’s alleged misconduct in an unrelated
matter would be to impeach his credibility. (Commonwealth’s brief at 7.) As
such, appellant has not shown that he is entitled to PCRA relief by
presenting after-discovered evidence that will not be used solely to impeach
a witness’s credibility. D’Amato, 856 A.2d at 823.
Moreover, the evidence in appellant’s case was overwhelming.
Appellant’s accomplice, Hargrove, gave a statement to police implicating
appellant as the gunman. (Notes of testimony, 6/17/13 at 40-42.)
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Appellant also gave a statement in which he admitted that he shot the victim
with a 12-gauge shotgun. (Id. at 42-43.) Video surveillance from the store
showed appellant shooting the victim while Hargrove took money from the
cash register. (Id. at 43.) An eyewitness, an employee of the store who
was present during the robbery, identified appellant and Hargrove as the
perpetrators. (Id. at 44.) Therefore, appellant cannot possibly show that
the proffered “evidence” of Detective Dove’s alleged misconduct would lead
to a different result. Appellant’s after-discovered evidence claim fails.
Finally, appellant argues that trial counsel was ineffective for not
recognizing that due to appellant’s serious medical condition, appellant was
unable to enter a knowing, voluntary, and intelligent plea. (Appellant’s brief
at 10.) According to appellant, he had recently undergone several medical
procedures related to head and neck cancer and was receiving
chemotherapy and radiation treatment. (Id.) Appellant claims that he was
heavily medicated at the time he entered his plea which inhibited his ability
to understand what was taking place. (Id.)
This issue is being raised for the first time on appeal and is deemed
waived. See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.
2011) (“It is well-settled that issues not raised in a PCRA petition cannot be
considered on appeal.” (quotation marks and citations omitted));
42 Pa.C.S.A. § 9544(b). Furthermore, the record reflects that plea counsel
and the trial court were well aware of appellant’s medical condition and the
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issue was discussed thoroughly during the plea proceedings. (Notes of
testimony, 6/17/13 at 3-12, 25-26, 31.) Appellant testified that he was
satisfied with counsel’s representation and that his medications did not affect
his ability to understand the proceedings. (Id. at 23, 26.) “A person who
elects to plead guilty is bound by the statements he makes in open court
while under oath and he may not later assert grounds for withdrawing the
plea which contradict the statements he made at his plea colloquy.”
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003) (citation
omitted). Essentially, appellant pled guilty to third-degree murder to avoid a
possible death sentence. There is no merit here.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
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