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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SAMUEL RICE,
Appellant No. 2026 WDA 2015
Appeal from the PCRA Order December 2, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001851-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 07, 2016
Appellant, Samuel Rice, appeals from the order denying his petition for
collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual and procedural
history of this case as follows:
On January 26, 2011, Stephen Mackowski and Susan
Selzer decided to rob Appellant, a drug dealer from whom
Mackowski had previously purchased narcotics. Mackowski
arranged to purchase a brick of heroin from Appellant and for
the transaction to be consummated in a public parking lot.
Mackowski placed items in the backseat of his car so that
Appellant could not enter it during the drug transaction, and
Selzer was located in the front passenger seat.
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*
Retired Senior Judge assigned to the Superior Court.
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Once Mackowski arrived at the designated location,
Appellant approached the car and gave Mackowski the heroin.
Mackowski handed the heroin to Selzer, ostensibly for her to
inspect it, and Mackowski then started to drive away without
paying Appellant for the drug. Appellant grabbed the window of
the car, obtained his gun, and shot Mackowski, who died from
his injuries, twice in the chest. Selzer removed the victim from
the driver’s seat, drove home, and then called an ambulance.
There was an independent eyewitness to the shooting.
Appellant was charged with homicide, carrying an
unlicensed firearm, reckless endangerment, and carrying a
firearm by a prohibited person. The latter charge was
subsequently withdrawn. The case proceeded to a jury trial,
where a mistrial was granted on August [17], 2011. Appellant
elected to plead guilty to all pending charges. Since Appellant
pled guilty to homicide generally, the matter proceeded to a
degree-of-guilt hearing. The trial court concluded that Appellant
was guilty of third-degree murder.
Appellant was sentenced on December 7, 2011. The
sentencing court had the benefit of a presentence report.
Appellant had prior convictions for receiving stolen property and
possession of two illegal guns. It sentenced Appellant to: 1)
seventeen-and-one-half to thirty-five years for third-degree
murder; 2) a consecutive term of incarceration of nine to
eighteen months for carrying a firearm without a license; and 3)
a concurrent term of six to twelve months for reckless
endangerment.
At sentencing, the victim’s family sought burial expenses
but did not have documentation supporting the amount of those
expenses. The court imposed restitution of one dollar, but
indicated that it was going to conduct another hearing to alter
the amount of restitution to allow the family to recover funeral
expenses. Appellant filed a timely post-sentence motion to the
December 7, 2011 judgment of sentence.[1] The trial court
thereafter held a restitution hearing on January 5, 2012. At that
time, the amount of restitution was increased to $8,873.05.
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1
The trial court denied Appellant’s post-sentence motion by order entered
December 22, 2011.
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Commonwealth v. Rice, 66 WDA 2012, 87 A.3d 891 (Pa. Super. filed
October 24, 2013) (unpublished memorandum at 1-3).
Appellant filed a timely appeal on January 6, 2012. This Court
affirmed Appellant’s judgment of sentence on October 24, 2013.
Commonwealth v. Rice, 66 WDA 2012, 87 A.3d 891 (Pa. Super. filed
October 24, 2013).
Appellant filed a pro se PCRA petition on July 9, 2014. Counsel was
appointed, and an amended PCRA petition was filed on March 31, 2015. The
PCRA court issued a notice of intent to dismiss on November 6, 2015, and by
order entered December 2, 2015, the PCRA court dismissed Appellant’s
petition without a hearing. Appellant timely appealed. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Is [Appellant’s] claim for relief properly cognizable under
the Post-Conviction Relief Act?
II. Did the lower court err in dismissing the PCRA Petition
without a hearing where [Appellant] presented a claim of
ineffective assistance of counsel which contains arguable merit;
specifically, counsel was ineffective for agreeing to stipulate to
the prior trial testimony of key Commonwealth witnesses
Kenneth Acrie and Suzan Selzer, thereby denying [Appellant] the
rights guaranteed him by the Sixth and Fourteenth Amendments
of the U.S. Constitution, and Article 1, Section 9 of
Pennsylvania’s Constitution?
Appellant’s Brief at 5.
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Furthermore, “[t]he right to an evidentiary hearing on a post-
conviction petition is not absolute.” Commonwealth v. Walls, 993 A.2d
289, 295 (Pa. Super. 2010).
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
citation omitted).
In his first issue, Appellant asserts that he is eligible for relief under
the PCRA. Appellant’s Brief at 22. He contends that his petition was timely
filed and that he is currently serving a sentence of imprisonment. Id.
Appellant’s petition challenges the effectiveness of counsel, and
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ineffectiveness claims are cognizable under the PCRA. Id. Additionally,
Appellant maintains that this issue has not been previously litigated nor has
it been waived. Id. Thus, Appellant argues that his claim is cognizable
under the PCRA. Id.
We agree with Appellant’s assertion that his claim for relief is
cognizable under the PCRA.2 42 Pa.C.S. §§ 9541-9546; see also
Commonwealth v. Lesko, 15 A.3d 345, 361 (Pa. 2011) (outlining criteria
for claims cognizable under the PCRA). Thus, we shall review the additional
issue Appellant presents on appeal.
In his second issue, Appellant argues that the PCRA court erred in
dismissing his petition without a hearing where Appellant established the
merits of his claim that trial counsel was ineffective. Appellant’s Brief at 32.
Specifically, Appellant contends that counsel was ineffective for agreeing to
stipulate at the degree-of-guilt hearing to the prior trial testimony of
Commonwealth witnesses Kenneth Acrie and Suzan Selzer. Id. Appellant
asserts that “[b]ecause trial counsel failed to subject the prosecution’s case
to meaningful, adversarial testing, [Appellant] was deprived of his
confrontation rights as guaranteed by the federal and state constitutions.”
Id. at 25. Appellant further maintains that counsel was ineffective for
stipulating to the prior trial testimony of Acrie and Selzer “insofar as he did
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2
We note that there has been no suggestion by the Commonwealth or the
PCRA court that Appellant’s claim for relief is not cognizable under the PCRA.
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not cross-examine Acrie at all during the trial, and his cross-examination of
Selzer at trial did not touch upon the factual circumstances that became
relevant during the degree-of-guilt hearing.” Id. at 26. Appellant contends
that trial counsel did not have a reasonable basis for depriving Appellant of
his state and federal rights to confront and cross-examine adverse
witnesses. Id. at 32. Moreover, Appellant asserts that he was prejudiced
by counsel’s failure to cross-examine these witnesses at the degree-of-guilt
hearing. Id. Appellant posits that “there is a reasonable probability that but
for counsel’s error, [Appellant] would have been adjudged guilty of
Voluntary Manslaughter instead of Third Degree Murder.” Id. at 32-33.
When considering an allegation of ineffective assistance of counsel
(“IAC”), counsel is presumed to have provided effective representation
unless the PCRA petitioner pleads and proves that: (1) the underlying claim
is of arguable merit; (2) counsel had no reasonable basis for his or her
conduct; and (3) petitioner was prejudiced by counsel’s action or omission.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of
ineffective assistance of counsel will fail if the petitioner does not meet any
one of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260
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(Pa. 2013). “The burden of proving ineffectiveness rests with Appellant.”
Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
The PCRA court provided the following analysis of Appellant’s claim:
Even assuming, for the sake of argument, that [Appellant]
could establish the first two (2) prongs of the [IAC] test,
[Appellant] has failed to prove that he was actually prejudiced by
counsel’s stipulation because he cannot show that the stipulation
could have reasonably had an adverse effect on the outcome of
the proceedings.
With respect to Mr. Acrie’s testimony, [Appellant] argues
that counsel failed to conduct any cross examination into “the
conditions under which Acrie purportedly made his observations
– the short period of time that elapsed during the incident, the
limited view in his rearview mirror as he was driving away, that
he couldn’t have seen [Appellant’s] hands at all, and the fact
that he didn’t actually see a shooting.” [Appellant] also argues
that counsel failed to “address the inconsistencies in Acrie’s
testimony as to the order in which the events transpired, and
whether [Appellant] was being dragged along, or was hanging
onto the car.”
Contrary to [Appellant’s] assertions, counsel’s stipulation
to Mr. Acrie’s testimony did not prejudice [Appellant]:
First, with respect to the issue of counsel’s
decision not to cross-examine Mr. Acrie regarding his
observations, the court notes that Mr. Acrie was
candid about the circumstances surrounding his
observations, and at no point during his direct
examination did he suggest that he had a perfect,
unobstructed, and continuous view of the encounter.
To the contrary, Mr. Acrie admitted that he could not
identify the shooter or the individuals in the car, that
he observed what he believed to be a shooting from
the rear-view mirror of his vehicle as he was still
driving, and that he could not see any object in the
shooter’s hands. These factors all weighed in
[Appellant’s] favor. Accordingly, since the
weaknesses in Mr. Acrie’s view were clearly
established through his direct examination, Counsel’s
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strategic decision to forego cross-examination and
stipulate to his testimony at the Hearing was
inconsequential.
Furthermore, this court was well-familiar with
the limitations of Mr. Acrie’s observations since it
presided over the trial and paid careful attention to
the testimony presented. This court specifically took
into account the circumstances surrounding Mr.
Acrie’s view of the incident in making its credibility
determinations and rendering its verdict at the
Hearing.
Second, notwithstanding Mr. Acrie’s view of the
incident, Mr. Acrie testified credibly and confidently
that he heard a screeching of the vehicle and then
heard the shots being fired. Mr. Acrie’s testimony
regarding this sequence of events was entirely
consistent with Mrs. Selzer’s testimony. Mrs. Selzer
testified that, before any shots were fired, the car
had already stopped moving in a forward direction.
Finally, the fact that counsel did not question
Mr. Acrie as to whether [Appellant] was hanging on
to the vehicle or was being dragged is immaterial
given that Mr. Acrie testified at numerous points that
it looked like the individual was being “dragged”
along by the car because the vehicle was moving too
fast for the individual to have been running with the
car. Moreover, [Appellant] took the stand at the
Hearing and insisted that he was being dragged
along by the vehicle and was not voluntarily hanging
on to the vehicle throughout the entire incident. The
court notes that, in rendering its verdict, it gave
[Appellant] the benefit of the doubt and accepted
that [Appellant] had, at one point, been dragged
along by the vehicle prior to the vehicle stopping its
forward motion. Accordingly, the issue of whether
[Appellant] was dragged by the vehicle is a moot
point, and counsel’s lack of inquiry into that issue did
not prejudice [Appellant] in any way.
With respect to Mrs. Selzer’s testimony, [Appellant] argues
that counsel “failed to address the inconsistencies in her version
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of the events” and “did not ask for the details on the order of
events, or the timing and nature of [Appellant’s] actions.”
Contrary to [Appellant’s] contention, counsel conducted a
thorough and lengthy cross-examination of Mrs. Selzer at trial.
Counsel questioned her regarding inconsistencies in her
testimony, the sequence of events, [Appellant’s] conduct, and
her bias and motive to lie. Thus, the introduction of Mrs.
Selzer’s trial testimony at the Hearing did not prejudice
[Appellant] because the facts relevant to the court’s
determination of culpability with respect to her testimony had
already been established at trial.
Against this backdrop, the court finds that counsel’s
stipulation to the testimony of Mr. Acrie and Mrs. Selzer at the
Hearing did not actually prejudice [Appellant] because there is
no reasonable probability that the live testimony of these
witnesses would have led this court to reach a different verdict
at the Hearing. The court had ample opportunity to assess the
reliability and credibility of these witnesses and the court was
well-aware of any discrepancies in the witness testimony.
However, it was the duty of this court, as the fact-finder, to
resolve those discrepancies, and a fact-finder is entitled to
believe all, part, or none of a witness’ testimony.
Notice of Intent to Dismiss, 11/6/15, at 3-6 (emphasis in original) (internal
paragraph numbering and citations omitted).
The PCRA court’s analysis is supported by the evidence of record. We
agree with the PCRA court’s conclusion that Appellant has failed to establish
that he was prejudiced by counsel’s decision to stipulate at the degree-of-
guilt hearing to the witnesses’ trial testimony. Because Appellant has failed
to establish that he suffered prejudice as a result of counsel’s actions, his
IAC claim fails. See Rega, 933 A.2d at 1018 (“a failure to satisfy any prong
of the ineffectiveness test requires rejection of the claim.”). Moreover,
because there were no genuine issues concerning any material fact, the
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PCRA court was not required to conduct a hearing prior to dismissing
Appellant’s petition. Wah, 42 A.3d at 338.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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