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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DONZIE DEVERO,
Appellant No. 2143 EDA 2016
Appeal from the PCRA Order Entered June 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002797-2007
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2017
Appellant, Donzie Devero, appeals from the post-conviction court’s
June 6, 2016 order denying his petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The facts of Appellant’s underlying convictions are unnecessary to our
disposition of his appeal. We need only note that he was charged with
burglary in four different cases, which were ultimately disposed of in two
separate trials in September and November of 2009.
During these trials, Appellant represented himself with
court approval and the assistance of a court-appointed public
defender. See Trial Court Opinion, 3/13/12, at 1.
At Appellant’s first trial commencing on September 1,
2009, the jury convicted him of burglarizing Alicia Carranco’s
home on North 3rd Street in Philadelphia. Appellant’s second
trial began on November 17, 2009, and at the close thereof, the
jury found him guilty of committing burglaries at three different
residences in Philadelphia.1 On January 15, 2010, Appellant was
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sentenced in all four cases to an aggregate term of 15 to 30
years’ imprisonment. He filed a timely pro se notice of appeal
and, after conducting a hearing in accordance with
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the trial
court granted him permission to proceed pro se [on appeal].
1
The jury acquitted Appellant of the burglary of a fourth
home on East Comly Street in Philadelphia.
Commonwealth v. Devero, No. 407 EDA 2010, unpublished memorandum
at 1-2 (Pa. Super. filed February 15, 2013).
On direct appeal, this Court affirmed two of Appellant’s burglary
convictions, but vacated his third, concluding that the evidence was
insufficient to sustain that conviction. See id. at 10-11. We did not remand
for resentencing, as our disposition did not upset the court’s overall
sentencing scheme. Id. at 14. Appellant did not file a petition for allowance
of appeal.
Instead, on January 6, 2014, Appellant filed a pro se PCRA petition, as
well as a pro se amended petition on July 14, 2014. Counsel was appointed,
and he filed another amended petition on Appellant’s behalf on February 27,
2015. On May 3, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss Appellant’s petition. Appellant did not respond, and on
June 6, 2016, the court issued an order dismissing his petition. Appellant
filed a timely notice of appeal, as well as a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Herein, he presents two
issues for our review:
I. Whether the court erred in denying [] Appellant’s PCRA
petition without an evidentiary hearing on the issues raised in
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the amended PCRA petition regarding trial counsel’s
ineffectiveness[?]
II. Whether the court erred in not granting relief on the PCRA
petition alleging counsel was ineffective[?]
Appellant’s Brief at 9.
Preliminarily, a discussion of Appellant’s first issue will be subsumed
within our assessment of his second claim, in which he presents the
following four assertions of trial counsel’s ineffectiveness:
A. Trial counsel was ineffective for failing to object to the trial
court’s deficient oral colloquy of [] Appellant’s waiver of his Fifth
Amendment right to counsel.
B. Trial counsel was ineffective for failing to object to the Judge’s
request for counsel to cross-examine the fingerprint expert.
C. Trial [c]ounsel was ineffective for failing to object to the
Judge’s answering of the jury’s questions without Appellant’s
presence.
D. Counsel was ineffective for failing to object to the Judge’s
answering of the jury questions.
Appellant’s Brief at 23, 26, 28, 30 (emphasis omitted).
Our standard of review regarding an order denying post-conviction
relief under the PCRA is whether the determination of the court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference
to the findings of the PCRA court, and we will not disturb those findings
merely because the record could support a contrary holding.
Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).
Additionally, it is well-settled that,
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[t]o prove counsel's ineffectiveness, [an] appellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
counsel's performance lacked a reasonable basis; and (3) the
ineffectiveness of counsel caused him prejudice.
Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213
(2001). Failure to address any prong of the test will defeat an
ineffectiveness claim. Commonwealth v. Basemore, 560 Pa.
258, 744 A.2d 717, 738 n. 23 (2000).
Commonwealth v. Williams, 899 A.2d 1060, 1063 (Pa. 2006).
In Appellant’s first claim of counsel’s ineffectiveness, he argues that
his trial attorney (who represented him until he was granted leave to
proceed pro se) rendered deficient representation during the oral colloquy of
Appellant regarding his waiver of the right to counsel. Appellant maintains
that counsel should have asked that he be questioned further about his
mental health issues, especially after the following exchange between
Appellant and the Commonwealth revealed that Appellant suffered from
mental illness:
[The Commonwealth]: Are you currently under the influence of
drugs or alcohol?
[Appellant]: No, sir.
[The Commonwealth]: Have you ever been treated for mental
illness?
[Appellant]: Yes, sir.
[The Commonwealth]: Does that currently impair your abilities?
[Appellant]: No, sir.
[The Commonwealth]: Are you currently receiving any
psychiatric care?
[Appellant]: No, not at this time.
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N.T. Hearing, 5/19/09, at 11. Trial counsel did not ask for further
exploration into Appellant’s mental health, and the court ultimately allowed
Appellant to proceed pro se at trial.
In Appellant’s pro se PCRA petition, and in his pro se amendment
thereto, he averred that his mental illness impacted his ability to waive his
right to counsel and, thus, his trial counsel should have sought further
inquiry about his mental health. More specifically, Appellant asserted that
he had been diagnosed with paranoid schizophrenia, and that “he [has] the
tendency to lapse [into a] severe state of deep depression, which cause[s]
him to hullucinate [sic] and hear voices.” Appellant’s “Supplement
Amendment to Brief,” 7/14/14, at 3. He also alleged that at the time of the
colloquy, he was in a “delusional state” such that he could not understand
the decision to waive his right to counsel. Id. Appellant maintained that
“[r]ecords from the county prison medical department” (which he stated he
would subpoena “upon [the] appointment of PCRA counsel”) would “verify
that [he] was being prescribed a range of medications including but not
limited to thorazine, singequan [sic] …, and/or Benadryl through all phases
of his trial process, including the colloquy and Grazier hearing.” Appellant’s
Brief in Support of PCRA Petition, 1/6/14, at 4.
However, the PCRA court apparently did not consider the factual
assertions, presented in Appellant’s pro se petitions, regarding his mental
illness. Instead, the court only assessed the claims and allegations set forth
in Appellant’s February 27, 2015 counseled, amended petition (and an
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affidavit drafted by Appellant attached thereto). The PCRA court reasoned
that “[o]ur courts have strongly suggested that an amended PCRA petition
supersedes a preceding pro se one.” PCO at 4 (citing Commonwealth v.
Renchenski, 52 A.3d 251, 258, 259 (Pa. 2012) (stating that, “at the time a
[PCRA] court is considering ‘the petition,’ the document at issue is most
often the amended petition, as a pro se petitioner is entitled to file an
amended first petition once counsel is appointed[;]” and also noting that, “in
the usual case, the amended petition - rather than the original petition - sets
forth the claims that a petitioner must prove and upon which the PCRA court
may grant relief”)). The PCRA court then concluded that Appellant had
failed to plead sufficient facts to demonstrate that, at the time of the oral
colloquy, he was suffering from a mental illness that impaired his ability to
waive his right to counsel. The court explained that “[n]either [Appellant]
nor counsel mentioned [Appellant’s mental health] history in their
submissions [to the PCRA court,] nor made any attempt to document a
mental condition, or in any way demonstrate, or even mention, its extent, of
what it consisted[,] nor what affects it had on [Appellant’s] rationality at the
time of the waiver hearing and trials.” Id. at 13. The court also stressed
that Appellant’s statements at the colloquy indicated that his mental health
issues were not impacting his abilities. See id. at 15. Therefore, the court
found that Appellant had failed to plead sufficient facts to show that he was
prejudiced by counsel’s failure to demand further inquiry into his mental
health.
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Now, on appeal, Appellant’s counsel presents no challenge to the
court’s decision not to consider the factual claims presented in Appellant’s
pro se filings. Additionally, in Appellant’s Rule 1925(b) statement, counsel
referred only to the amended petition, stating: “The court was in error in
denying the amended PCRA filed by PCRA counsel on February 27,
2015 and developed in the amended PCRA. These issues in the
amended PCRA were the following[,]” after which counsel stated the
four ineffectiveness claims set forth, supra. Pa.R.A.P. 1925(b) Statement,
8/17/16, at 1 (emphasis added). Based on PCRA counsel’s failure to raise
any challenge to the PCRA court’s decision to only consider the counseled,
amended petition, as well as counsel’s framing of the issues in Appellant’s
Rule 1925(b) statement, we cannot address whether the PCRA court erred
by ignoring the factual allegations presented by Appellant in his pro se
filings. See Commonwealth v. D’Amato, 856 A.2d 806, 814 (Pa. 2004)
(finding the appellant waived a claim where it was “so undeveloped that it
[was] the functional equivalent of no argument at all”); see also Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
Restricting our review to the claims presented in counsel’s amended
PCRA petition, we are compelled to agree with the PCRA court that Appellant
failed to plead sufficient facts to support his claim that trial counsel was
ineffective by not requesting further colloquy into Appellant’s mental health.
In the amended petition, counsel stated, in pertinent part:
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[Trial] counsel should have asked the court during the colloquy
to question [Appellant] regarding his mental health history. That
would have indicated that [Appellant] was unable to fully
comprehend the situation of proceeding without counsel.
The first prong of the [ineffectiveness] test is whether …
trial counsel’s failure to correct the colloquy has merit. In this
case, the prong is met.
The second prong of the [ineffectiveness] test is whether
there was a “reasonable basis” to justify counsel’s alleged
ineffectiveness. In this case, there was no basis not to correct
the colloquy.
The third prong is whether [Appellant] has suffered actual
prejudice as a result of counsel’s ineffectiveness. In this case,
there is a clear showing of actual prejudice as a result of
counsel’s ineffectiveness. Had [Appellant] been given a correct
colloquy, he would have proceeded with counsel. Thus, it is
evidence that actual prejudice resulted from counsel’s
ineffectiveness.
Amended PCRA Petition, 2/27/15, at 17-17 (citations omitted). Counsel also
attached to this petition an affidavit from Appellant in which Appellant
referred to his “disability” and “mental affirmity [sic],” but he did not
elaborate on the specifics of his mental health issues. See id. at Appendix
A.
Based on the undeveloped assertions in Appellant’s amended petition,
we must agree with the PCRA court that he did not plead sufficient facts to
support that, at the time of the colloquy, he was suffering from a mental
health issue that impaired his ability to validly waive his right to counsel. At
the time of the oral colloquy, Appellant stated he was not on medication, he
was not receiving psychiatric care, and his mental health issues were not
impacting his decision to waive his right to counsel. Without at least some
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description by Appellant, in his amended PCRA petition, of what his mental
health issues were at the time of the waiver colloquy, and how they
impacted his ability to waive his right to counsel, he simply cannot
demonstrate that he was prejudiced by trial counsel’s failure to demand
further colloquy regarding his mental health. Accordingly, the PCRA court
did not err in rejecting Appellant’s first claim of trial counsel’s
ineffectiveness.
Appellant’s remaining three claims of ineffectiveness are also
meritless. Essentially, Appellant contends that his standby counsel was
ineffective for: (1) failing to object when the trial court instructed standby
counsel to cross-examine an expert witness, (2) failing to object to the trial
court’s answering a question from the jury when Appellant was allegedly not
present in the courtroom, and (3) failing to object to the content of the
court’s answer to the question by the jury. Our Supreme Court has declared
that “the law is clear that a defendant who chooses to represent himself has
no recourse if he or standby counsel has been ineffective.”
Commonwealth v. Fletcher, 986 A.2d 759, 778 (Pa. 2009) (emphasis
added); see also Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012)
(clarifying that “the appointment of standby counsel does not imply or
authorize some sort of hybrid representation[,]” and reiterating Fletcher’s
holding that “a defendant who chooses to represent himself cannot obtain
relief by raising a claim of ineffectiveness of counsel or standby counsel”)
(emphasis in original). Because Appellant chose to waive his right to
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counsel and proceed pro se, he cannot now claim that his standby counsel
rendered ineffective representation.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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