J-S55007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FLOYD CONSTANTIN BOGLE, :
:
Appellant : No. 495 MDA 2017
Appeal from the PCRA Order February 22, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003127-2008
BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 19, 2017
Floyd Constantin Bogle (“Appellant”) appeals pro se from the denial of
his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546.1 He asserts that trial, appellate, and post-conviction
counsel provided ineffective assistance, and avers that the PCRA court
should have held a hearing on his Petition. We affirm in part and remand to
the trial court for the appointment of counsel and an evidentiary hearing on
the issue of plea counsel’s effectiveness.
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* Retired Senior Judge assigned to the Superior Court.
1 The PCRA court rendered its Order on February 21, 2017; however, the
Order was not entered on the trial court’s docket until February 22, 2017.
The caption in this appeal has been changed accordingly.
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On January 27, 2011, a jury found Appellant guilty of First-Degree
Murder, Aggravated Assault, and Possession of an Instrument of Crime
(“PIC”) in connection with the fatal stabbing of his father. On March 16,
2011, the court sentenced him to a mandatory term of life in prison for First-
Degree Murder with credit for time served, and a concurrent sentence of 4 to
24 months’ incarceration for PIC.2 This Court affirmed the Judgment of
Sentence and the Pennsylvania Supreme Court denied allowance of appeal.
See Commonwealth v. Bogle, 1078 MDA 2011 (Pa. Super. filed July 19,
2012) (unpublished memorandum), appeal denied, 63 A.3d 772 (Pa.
2013). On October 7, 2013, the United States Supreme Court denied
Appellant’s Petition for Writ of Certiorari. Bogle v. Pennsylvania, 134
S.Ct. 231 (2013).
On June 14, 2014, Appellant filed a 51-page pro se PCRA Petition. The
court appointed counsel and on February 22, 2016, entered an Order
providing counsel with 90 days to file an amended PCRA Petition. On April
29, 2016, counsel filed a Petition for Leave to Withdraw as Counsel, in which
he also sought the court’s permission for Appellant to represent himself. On
May 4, 2016, Appellant filed a pro se Motion to Proceed Pro Se. The court
held a status conference after which it deferred ruling on the Motions after
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2 Relevant to this appeal, on the first day of trial, Appellant rejected the
Commonwealth’s offer of an open nolo contendere plea to Third-Degree
Murder on which the court informed him he could receive a sentence of 20 to
40 years’ incarceration. See discussion, infra.
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counsel and Appellant had apparently worked out their differences and
Appellant agreed to proceed with counsel representing him.
On October 6, 2016, the court entered an Order scheduling a PCRA
Hearing. However, on October 31, 2016, PCRA counsel filed a
Turner/Finley3 “no-merit letter” requesting leave to withdraw as counsel.
Appellant filed a letter in response, and on December 9, 2016, he filed a pro
se “First Supplement to PCRA Petition” (“First Supplement”). On December
30, 2016, the PCRA court filed a Notice of Intent to Dismiss pursuant to
Pa.R.Crim.P. 907.
On January 17, 2017, the court granted counsel’s request to withdraw
from representation. On January 26, 2017, Appellant filed a pro se response
to the Rule 907 Notice. On February 22, 2017, the Court entered the order
dismissing Appellant’s PCRA Petition. Appellant filed a timely pro se Notice
of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.4
In his Brief, Appellant raises the following issues, verbatim:
1. Did the PCRA Court error in denying appellants PCRA, First
Supplement to PCRA and the Response to the Judges Rule
907 Notice, that dealt with claims of trial Counsel’s
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3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4 In lieu of a Rule 1925(a) Opinion, the PCRA Court submitted a “Statement
of Reasons” directing our attention to its December 30, 2016 Order and
Notice of Intent to Dismiss. See Statement of Reasons, dated April 12,
2017.
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Ineffectiveness by causing appellant to reject a plea offer
which is a violation of the Pennsylvania and United States
Constitution (6th Amendment) right to Counsel. A right that is
extended to the plea bargaining process?
(i) Did appellate counsel also provide ineffective assistance
of counsel for not making a layered ineffectiveness
claim on appellate counsel?
(ii) Did PCRA Court error for not asking PCRA Counsel to
make these claims in an Amended PCRA?
2. Did the PCRA Court error in denying appellant a hearing that
his appellant counsel was ineffective for not making a claim
on appeal that trial counsel was ineffective for failure to call
expert witness, John Hume, M.D. to testify without telling
appellant that he had to change their plans of not calling Dr.
Hume to testify because that plan will not change the
outcome of trial. After an agreement they had, which was
that appellants testimony would be by way of the expert,
because the prosecutor will eat appellant alive if he should
take the stand?
(i) Did the PCRA court error for not asking PCRA counsel
to amend this claim, a clear layered ineffective
assistance claim?
(ii) Did PCRA counsel provide ineffective assistance of
counsel when he stated that this claim of failure to
call expert witness is without merit?
3. Did the PCRA court error for not vacating appellants
conviction of Murder in the First Degree, because of the not
guilty verdict of Murder in the Third Degree that is conflicted
with the guilty verdict of Murder in the First Degree, because
the fact finders had not proven “Malice” in their “Not Guilty”
verdict of Murder in the Third Degree which malice is a
prerequiste or required element of First Degree Murder and
any other Murder?
(i) Was trial counsel and appellate counsel ineffective
for not making this claim, and was PCRA counsel
ineffective for not making a layered ineffectiveness
claim?
(ii) Did PCRA court error in not asking PCRA counsel to
amend this claim?
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4. Did PCRA court error for not asking PCRA counsel to amend
appellants PCRA in regards to trial and appellate counsels
ineffectiveness for failing to object or make a claim of
prosecutional misconduct?
(i) Did PCRA counsel act ineffective for sending
appellant a “No Merit Letter” in failing to make a
prosecutional misconduct claim?
(ii) Did PCRA counsel provide ineffective assistance for
not articulating this claim?
5. Did the PCRA court error in denying appellant a hearing to
determine the merits of his PCRA, First Supplement to PCRA
and the Response to the Judges Rule 907 Notice to Dismiss,
that dealt with material issues of Fact?
6. Did the PCRA court error in not removing appointed counsel
when asked to do so by appellant?
Appellant’s Brief at 7-8.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.
Super. 2012).
The right to an evidentiary hearing on a post-conviction petition is not
absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.
Super. 2001). It is within the PCRA court’s discretion to decline to hold a
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hearing if the petitioner’s claim is patently frivolous and has no support in
either the record or other evidence. See 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. See Commonwealth v. Hardcastle, 701 A.2d 541,
542-43 (Pa. 1997). In “ineffectiveness claims in particular, if the record
reflects that the underlying issue is of no arguable merit or no prejudice
resulted, no evidentiary hearing is required.” Commonwealth v.
Baumhammers, 92 A.3d 708, 726-27 (Pa. 2014) (citation omitted). We
review a PCRA court’s decision to deny a claim without a hearing for an
abuse of discretion.
INEFFECTIVE ASSISTANCE OF COUNSEL - Issues 1 through 4
Appellant’s first four issues challenge the effective assistance of trial,
appellate, and PCRA counsel. The law presumes counsel has rendered
effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.
Super. 2010). The burden of demonstrating ineffectiveness rests on
Appellant. Id. To satisfy this burden, Appellant must plead and prove by a
preponderance of the evidence 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
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counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
With respect to layered ineffectiveness claims, the Pennsylvania
Supreme Court has provided the following guidance:
[I]n order for a petitioner to properly raise and prevail on a
layered ineffectiveness claim, sufficient to warrant relief if
meritorious, he must plead, present, and prove the
ineffectiveness of Counsel 2 (appellate counsel), which as we
have seen, necessarily reaches back to the actions of Counsel 1
(trial counsel). To preserve (plead and present) a claim that
Counsel 2 was ineffective in our hypothetical situation, the
petitioner must: (1) plead, in his PCRA petition, that Counsel 2
was ineffective for failing to allege that Counsel 1 was ineffective
for not [taking the suggested actions], see Commonwealth v.
Marrero, 748 A.2d 202, 203, n. 1 (2000); and (2) present
argument on, i.e., develop, each prong of the Pierce test as to
Counsel 2's representation, in his briefs or other court
memoranda.
Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003) (emphasis in
original).
“Where, however, the petitioner fails to plead, present and prove all
three prongs of the Pierce test regarding the underlying issue of trial
counsel's ineffectiveness, … [a] petitioner is unable to establish the requisite
arguable merit prong of his layered claim of appellate counsel's
ineffectiveness.” Commonwealth v. Reyes, 870 A.2d 888, 897 (Pa. 2005)
(citation omitted).
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We address each of Appellant’s underlying claims seriatum.
Guilty Plea
In his first layered ineffectiveness claim, Appellant claims that he
would have accepted the open plea of nolo contendere to Third-Degree
Murder that had been offered if he had known that the court would sentence
him to a term of life without parole after his jury conviction on First-Degree
Murder. He notes that the sentence he received was “contrary to the court’s
statement [made during the plea colloquy] that [A]ppellant would get a
maximum of 25 [years to] life if found guilty of murder of the first degree.”
Appellant’s Brief at 16. He avers that trial counsel failed to “object to the
plain error of the court,” and that counsel further failed to inform him that a
conviction of First-Degree Murder would carry a term of life imprisonment
without the possibility of parole. See id. at 17. Appellant asserts that,
pursuant to Lafler v. Cooper, 566 U.S. 156 (2012), the “proper remedy is
to order the state to reoffer the plea agreement.” Appellant’s Brief at 17.
In its Order and Notice of Intent to Dismiss, the PCRA court addressed
this issue in one sentence, stating that Appellant’s “complaint that he was
not properly advised of the consequences of rejecting the Commonwealth’s
plea offer flies in the face of the colloquy that begins on page 6 of the
transcript of the January 24, 2011 proceedings.” Order and Notice of Intent
to Dismiss at 7. We disagree.
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The exchange referenced by the PCRA court occurred on the first day
of trial before the presentation of evidence after counsel requested the court
to colloquy Appellant regarding his decision to reject the plea.
The Court: Mr. Bogle, it’s my understanding that you have
chosen not to enter a plea of any kind and you’re going to go to
trial; is that correct?
[Appellant]: Yes, sir.
The Court: I think counsel for each of the parties wants to
place on the record what that offer was and the fact that you’ve
rejected it.
[Defense Counsel]: Your Honor, as defense understood, the
offer was an open nolo contendere plea to third degree murder.
[Prosecutor]: That’s correct, Your Honor.
The Court: Do you understand that, Mr. Bogle? Do you
understand the no contest plea?
[Appellant]: Yes, I do.
The Court: Do you understand the difference between third[-]
degree murder and first[-]degree murder, second[-]degree
murder?
[Appellant]: In terms of?
The Court: In terms of the elements of the offenses.
[Appellant]: Yes, sir.
The Court: Do you understand the difference in possible
sentencing?
[Appellant]: Yes, sir.
The Court: For each of those three crimes? Do you
understand?
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[Appellant]: You mean - - -
The Court: In other words, first[-]degree murder, it would
carry a maximum sentence of 25 years to life. Do you
understand that?
N.T. Trial at 6-8.
The court and defense counsel then explained that under the terms of
the plea deal he was rejecting, the guidelines provided that with his past
clean record, he could be sentenced to six years, although there was no
guarantee that he would not get 20 to 40 years. See id. at 8-9.
The Sixth Amendment requires effective assistance at critical stages
of a criminal proceeding, including during the plea bargaining process.
McMann v. Richardson, 397 U.S. 759, 771 (1970). An ineffective
assistance of counsel claim that arises out of the plea bargaining process
is within the scope of Section 9543(a)(2)(ii) of the PCRA. See
Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 131 (Pa.
2001).
In Lafler, supra, the defendant twice rejected a plea offer based on
the advice of counsel; a jury convicted him; and he received a harsher
sentence than that offered in the rejected plea bargain. The U.S. Supreme
Court granted certiorari, and examined how to apply the prejudice test of
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Strickland v. Washington, 466 U.S. 668 (1984),5 where the ineffective
assistance results in a rejection of the plea offer and the defendant is
convicted at an ensuing trial.6 Ultimately, the Lafler Court concluded that,
even though a defendant does not have a right to receive a plea offer, “[i]f a
plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it.” Lafler, 566 U.S.
at 168.
If that right is denied, prejudice can be shown if loss of the plea
opportunity led to a trial resulting in a conviction on more
serious charges or the imposition of a more severe sentence.
Id.7 See also Commonwealth v. Steckley, 128 A.3d 826 (Pa. Super.
2015) (applying Lafler, and holding counsel’s failure to inform the defendant
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5 Under Strickland, a defendant seeking relief based on ineffective
assistance of counsel first must show that counsel's performance was
deficient, requiring showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed defendant by the Sixth
Amendment and, second, defendant must show that the deficient
performance prejudiced the defense by showing that counsel's errors were
so serious as to deprive defendant of a fair trial, a trial whose result is
reliable.
6 All parties in Lafler conceded that plea counsel had provided ineffective
assistance of counsel when he advised the defendant to reject the plea on
the ground that he could not be convicted at trial.
7 The U.S. Supreme Court also noted that “[t]he fact that [the defendant] is
guilty does not mean he was not entitled by the Sixth Amendment to
effective assistance or that he suffered no prejudice from his attorney’s
deficient performance during plea bargaining.” Lafler, 566 U.S. at 169.
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of the possible mandatory minimum sentence during plea negotiations was
ineffective assistance of counsel).
Here, it is clear that the trial court erred in telling Appellant during the
plea colloquy that if he were convicted of First-Degree Murder, he would
receive a sentence of 25 years to life imprisonment. See 18 Pa.C.S. §
1102(a)(1) (mandating a term of life without parole for a First-Degree
Murder conviction); Commonwealth v. Yount, 615 A.2d 1316 (Pa. Super.
1992) (interpreting Section 1102 as requiring life without the possibility of
parole). It is also clear from the trial transcripts that plea counsel did not
correct the court’s incorrect statement at that time. Appellant’s averment—
that but for counsel’s failure to correct the trial court and failure to inform
him of the mandatory sentence of life without parole, he would have
accepted the plea offer—raises an issue of merit. This satisfies the first
prong of the Pierce test.
However, it is not apparent from the record before us that Appellant’s
plea counsel had not, at some point prior to that first day of trial, informed
Appellant that Pennsylvania’s sentence for First-Degree Murder is life without
the possibility of parole. Likewise, it is not apparent from the record
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whether Appellant would have accepted the plea offer had he been properly
advised of the consequences of rejecting the plea.8
Without such evidence, we are unable to determine whether Appellant
has met the second and third prongs of the Pierce test, i.e., whether there
was a reasonable basis for trial counsel’s action or inaction, and whether the
outcome of the case would have been different but for those actions.
Without that determination, we are unable to conclude that Appellant’s
layered ineffectiveness claim has merit and warrants an appropriate remedy.
Consequently, because of the grave liberty interest at issue here, we
are constrained to remand for the PCRA court to appoint counsel and
proceed with an evidentiary hearing on the issue of plea counsel’s
performance.9
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8 We are mindful that, after being informed that he “can’t come back later
and say, I want to take the deal,” Appellant had responded, “I would not
even take time served. I’m going to trial.” N.T. at 10. In light of the
colloquy preceding Appellant’s statement, we will not infer, without other
evidence, that if Appellant had known he would get life without parole, he
would have made that same statement.
9 As our Supreme Court has made clear, we must remand for an evidentiary
hearing “in cases where the PCRA court declined to hold a hearing, and
where an assessment of witness testimony was essential to a petitioner’s
ineffectiveness claims[.]” Commonwealth v. Johnson, 966 A.2d 523, 540
(Pa. 2009). This is so that the PCRA court can observe the witnesses and
make credibility determinations based upon the live testimony of these
witnesses. Id. at 539 (noting “one of the primary reasons PCRA hearings
are held in the first place is so that credibility determinations can be made;
otherwise, issues of material fact could be decided on pleadings and
affidavits alone.”).
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Although we are remanding to the PCRA court to hold a hearing, we
are nonetheless able to address Appellant’s remaining issues as we agree
with the PCRA court that they are without merit.
Failure to Call Psychiatrist/Waiver of Right to Testify
In his next claim of ineffectiveness, Appellant contends that trial
counsel erred by not calling Dr. Hume as a defense witness on his behalf so
as to counter the testimony presented by Appellant’s cell mate.10 See
Appellant’s Brief at 26. He states that if Dr. Hume had been called to testify,
he could have presented Appellant’s version of events to the jury without
exposing Appellant to cross-examination. Appellant further avers that if he
had known that Dr. Hume was not going to testify, he could have decided to
testify on his own behalf.
Appellant contends that he was unaware at the time of his waiver
colloquy that defense counsel would not be calling Dr. Hume to testify. This
contention is belied by the record. After the Commonwealth rested, and the
court denied Appellant’s request for a judgment of acquittal, defense counsel
stated, “You Honor, defense will not be presenting evidence. Mr. Bogle is
electing not to testify.” N.T. at 456. Then the court, with the assistance of
defense counsel, conducted a waiver colloquy during which Appellant
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10 Adam Weiss was Appellant’s jail cell mate for approximately one month
and testified that Appellant had told him “God does his work through his
people, and on the same breath said his father’s time was up” and “it was
his father’s time to go.” N.T. Trial at 214, 233.
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indicated that he was not coerced or forced into making the decision not to
testify and that his decision was made of his own free will. See id. at 456-
459. Because defense counsel stated prior to the colloquy that the
defense would not be submitting any evidence, Appellant was well aware
that Dr. Hume would not be testifying before he waived his right to testify.
Further, as the PCRA court noted:
[T]he defense [theory] was that there was no evidence to show
that [Appellant] committed the crime, not that he committed the
crime but had a mental health defense. Additionally, Dr. Hume
would not have been able to testify about any of [Appellant’s]
statements to him for the truth of those statements so as to
excuse [Appellant’s] own testimony on that basis.
Consequently, there was no prejudice to [Appellant] in not
having Dr. Hume testify.
Order and Notice of Intent to Dismiss at 6.
We, thus, conclude that there is no merit to Appellant’s underlying
claim to support his layered assertions of counsel ineffectiveness. No relief
is due.
“Inconsistent” Verdicts
In his next ineffectiveness claim, Appellant avers that the court
violated his right against double jeopardy because it sent the jury back to
correct its verdict sheet before the verdict was announced. See Appellant’s
Brief at 20-21. Appellant has mischaracterized the proceedings.
By way of background, during jury deliberations in the instant case,
the jury asked the court to remind them of the difference between murder of
the first degree and murder of the third degree. See N.T. at 552. The court
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described the elements of each offense, including the definition of malice as
a separate element of both First- and Third-Degree Murder. See id. at
552-55. The jury returned to the jury room, and approximately 20 minutes
later, the foreperson handed a verdict sheet to the court. The following
exchange then occurred:
The Court: Okay. Obviously, the jury has had a little bit of a
problem with my earlier instructions, okay. The instructions
regarding the homicide charge are that if you were to find the
defendant guilty of any of those charges, you would only write
guilty on the charge that you so found. There would be nothing
else on the other two offenses.
So, the verdict of the jury as presently constituted, okay,
is improper. It is internally conflicted.
The Foreperson: Got ya.
The Court: So I’d ask you to go back to the jury deliberation
room. And if you want me to read anything else about those
three charges, I’ll do so. But go back to the jury deliberation
room and correct the verdict slip, okay, if, in fact, that is your
verdict. All right.
Do you understand?
The Foreperson: Yes.
The Court: Okay. Thank you. I’m going to send you out one
more time and have you come back.
N.T. at 555-56 (emphasis added).11
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11The “invalid verdict slip” was marked for identification as Jury Exhibit No.
5 and is included in the certified record. See N.T. at 1193.
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After sending the jury back, the court held a sidebar to inform counsel
that the foreman had written “guilty” on the line following Count 1 – First-
Degree Murder, and “not guilty” on the lines following Counts 2 and 3, Third-
Degree Murder and Voluntary Manslaughter, respectively. The court then
stated:
Obviously, that cannot be the verdict of the jury unless they
come back and tell me that it’s not guilty, all right. So I gave
them that instruction, sent them out to correct it. Now, we’ll see
what they come back with. Nobody knows. Conceivably, if they
correct it, then they did intend what they wrote on here at least
for Count 1. That’s what it’s going to be. But, inherently, you
can’t be guilty of first degree and not guilty of third degree. And
I think that’s due to a misunderstanding. But we’ll see what this
next one holds. Let’s see what they do.
N.T. at 556-57. Appellant’s counsel did not object.
The jury returned shortly thereafter, with a verdict sheet finding
Appellant guilty of First-Degree Murder, PIC, and two counts of Aggravated
Assault, with no other entries on the verdict sheet.
Appellant characterizes the court’s action as instructing the jury to
“reconsider” its verdict and, as a result, “Appellant[’]s double jeopardy rights
were violated and he is entitled to the original not guilty verdict rendered by
the jury in which the verdict of first degree murder will be invalid, and the
finding of guilty and the judgment of sentence be vacated.” Appellant’s Brief
at 24-25. Appellant argues that because the jury in its initial draft of the
verdict sheet declared him not guilty of Third-Degree Murder, it meant that
the jury did not believe that the Commonwealth had proven malice, and
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without proving malice, the guilty verdict for First-Degree Murder on the
initial verdict sheet could not stand. Accordingly, he asserts that “[t]rial
[c]ounsel was ineffective for not asking for an acquittal based on an invalid
verdict,” and appellate and PCRA counsel were ineffective for not raising trial
counsel’s ineffectiveness. Id. at 25.
In support of this issue, Appellant relies on Commonwealth v.
Petteway, 847 A.2d 713 (Pa. Super. 2004). In Petteway, the jury
announced its verdict, finding the appellant not guilty of possession but
guilty of possession with intent to deliver, among other crimes. The
appellant’s counsel asked to poll the jurors because their verdict was
inconsistent. Instead of polling the jurors, however, the court informed the
jurors that their verdicts were inconsistent, and then repeated its
instructions on constructive possession, and directed the jury to return to
deliberate on all charges in order to reach a consistent verdict. The jury
returned shortly thereafter with a guilty verdict on possession and reiterated
its guilty verdicts on the other charges.
On appeal, this Court concluded that the trial court erred in sending
the acquitted charge back to the jury for further deliberation. We recognized
that “cases discussing jury mistakes may grant a trial [court] the power to
direct amendment of erroneous guilty verdicts, none of those cases
authorize a court to direct reconsideration of an acquittal.” Petteway, 847
A.2d at 719 (emphasis in original). Despite the trial court’s error in sending
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the acquitted charge back to the jury for further deliberation, our Court did
not remand for resentencing because the simple possession charge merged
with the delivery charge and appellant received no punishment for the
former. “Therefore, appellant’s sentence would be no different on remand in
the absence of that charge.” Id. at 720.
In Commonwealth v. Brightwell, 424 A.2d 1263, 1264 (Pa. 1981),
the jury returned two “obviously inconsistent” verdicts of guilty, one for
Voluntary Manslaughter and one for Third-Degree Murder. The court
ordered that the guilty verdict for Third-Degree Murder be recorded. The
appellant raised an ineffectiveness assistance of counsel claim in a PCRA
petition, alleging that counsel should have challenged the court’s actions.
The Pennsylvania Supreme Court held that until a verdict was officially
recorded, it was amendable.
The instant case is distinguishable from Petteway. Unlike in
Petteway, the verdict here had not been announced. Further, the court
here did not direct the jury to “reconsider” its “not guilty” verdict or its
“guilty” verdict. Rather, the court reviewed the verdict sheet, as all trial
courts do for accuracy before the foreman announces the verdict, and
instructed the jury on how to fill out the verdict sheet properly. Pursuant to
Brightwell, the court’s action was allowable and, contrary to Appellant’s
argument, did not offend Appellant’s double jeopardy rights.
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Because the underlying issue in this claim has no merit, Appellant’s
layered ineffectiveness claims fail.
Prosecutorial Misconduct
Appellant next avers that trial counsel and all subsequent counsel were
ineffective because trial counsel failed to object when the prosecutor
“[m]ade an expression of his personal beliefs when he stated … ‘This is a
horrible thing, killing your father.’” Appellant’s Brief at 31, quoting N.T. at
122.12 Appellant contends that the prosecutor’s comment “prejudice[d] the
defendant so much as to prevent appellant from having a fair trial” in
violation of his due process rights. Appellant’s Brief at 30, citing
Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2013).13 He further
avers that the “prosecutor’s expressions of personal belief concerning a
critical issue violated the permissible conduct and the standards of the
Commonwealth.” Appellant’s Brief at 31.
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12 Appellant also notes snippets of sentences taken from the Notes of
Testimony allegedly representing comments made by the prosecutor during
closing arguments, only one of which has a citation to the record. On their
face, those partial sentences are simply statements of fact based on the
evidence presented. They bear absolutely no semblance to the prosecutor’s
personal opinion. See Appellant’s Brief at 312, citing N.T.
13 Appellant cites the case as Commonwealth v. Bushner. See
Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2012) (observing that
“reversible error arises from a prosecutor's comments only where their
unavoidable effect is to prejudice the jurors, forming in their minds a fixed
bias and hostility toward the defendant such that they could not weigh the
evidence objectively and render a fair verdict.”).
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When considering an allegation of prosecutorial misconduct, the
question is “whether the defendant was deprived of a fair trial, not deprived
of a perfect trial.” Commonwealth v. LaCava, 666 A.2d 221, 231 (Pa.
1995). We review claims of prosecutorial misconduct with the following
precepts in mind.
The Pennsylvania Supreme Court has stated that “[t]he essence
of a finding of prosecutorial misconduct is that the prosecutor, a
person who holds a unique position of trust in our society, has
abused that trust in order to prejudice and deliberately mislead
[the factfinder].” Commonwealth v. Pierce, 645 A.2d 189,
197 (Pa. 1994). … Prosecutorial misconduct will justify a new
trial where the unavoidable effect of the conduct or language
was to prejudice the factfinder to the extent that the factfinder
was rendered incapable of fairly weighing the evidence and
entering an objective verdict. If the prosecutorial misconduct
contributed to the verdict, it will be deemed prejudicial and a
new trial will be required.
Commonwealth v. Francis, 665 A.2d 821, 824 (Pa. Super. 1995).
“We will only reverse the trial court if the unavoidable effect of the
prosecutor’s comments is to create hostility against the defendant such that
the jury is hindered in its job of objectively weighing the evidence.”
Commonwealth v. Miles, 681 A.2d 1295, 1302 (Pa. 1996).
As the Supreme Court has noted, “this is a relatively stringent
standard against which appellant must labor.” LaCava, supra, at 231
(citation omitted). Moreover, “[t]he touchstone is the fairness of the trial,
not the culpability of the prosecutor.” Commonwealth v. Cox, 983 A.2d
666, 685 (Pa. 2009). Finally, “we do not look at the comments in a vacuum;
rather we must look at them in the context in which they were made.”
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Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008). “The
prosecution, like the defense, is accorded reasonable latitude and may
employ oratorical flair in arguing its version of the case to the jury.”
Commonwealth v. Weiss, 776 A.2d 958, 969 (Pa. 2001).
In his opening statement, after describing the evidence to be
presented, the prosecutor stated:
Ladies and gentlemen, as I already pointed out to you, this case
is going to show you that life is not like CSI. There aren’t
fingerprints. There is no DNA, and there aren’t security tapes
everywhere. You’re going to get a little flavor of it from the cell
phone records. But then again, in the end, they don’t do much
but show you where Floyd Bogle was. And then he admits to the
police, Yeah, I was in Berks County.
Those cell phone records or any one piece in this case doesn’t
prove anything taken by itself. This case is like a jigsaw puzzle.
You’re going to put the pieces together. And by the end, the
pieces are going to form a picture. And you’re going to see what
it is, that Floyd Bogle killed his father on April 24th of 2007.
This is a horrible thing, killing your father. But you’re going to
hear he had the motive about money. He had access. He had
his pass and his parking pass to get into [the site]. He had the
knowledge because he would drive his father there. And he had
the consciousness of guilty.
He lied to his girlfriend. He lied to the police about where he
was when they confronted him about the [cell phone] records.
He lied about who he was with and what he was doing. He lied
to Shaquila Byrd and tried to get her to be an alibi. That’s what
you’re going to hear. And by the end, the puzzle is going to
show that the defendant is guilty. Thank you.
N.T. at 122-23.
The only segment of the opening remarks with which Appellant takes
umbrage is the prosecutor’s stating, “This is a horrible thing, killing your
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father.” In the context of the entire opening statement, this sentence does
not support Appellant’s assertion that the prosecutor’s conduct prejudiced
the jury so as to form in their minds a fixed bias and hostility toward him. It
was simply “oratorical flair” which is entirely permissible. Surrounded by the
prosecutor’s comments about motive and circumstantial evidence, the
prosecutor’s words seemed designed to acknowledge how difficult it might
be for some members of the jury to overcome their belief that the
allegations are simply too horrible to be true.
Moreover, although Appellant does not acknowledge it, in both its
opening and closing instructions the trial court stated to the jury that
statements of counsel are not evidence to be considered in determining its
verdict. See, e.g., N.T. at 98, 100, 461, 524-25. We presume juries follow
instructions. Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992).
Accordingly, we conclude that Appellant’s underlying claim of prosecutorial
misconduct has no merit.
Because none of the underlying claims has merit, Appellant’s layered
ineffectiveness claims fail.
DISMISSAL OF PCRA PETITION WITHOUT A HEARING – Issue 5
In his fifth issue, Appellant avers that the PCRA court should have held
a hearing because, inter alia, all the foregoing claims “dealt with material
issues of fact.” Appellant’s Brief at 32. In support, Appellant summarizes
each of the issues addressed supra before concluding that the PCRA Court’s
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“failure to prepare an Opinion on all the issues in appellant’s Rule 1925(b)
statement is an abuse of discretion since the failure to explain the reasons
for the order could result in the appellate court being unable to review and
determine … that appellant is guilty of all charges.” Id. at 33-34.
As discussed supra, we agree that the PCRA court erred in failing to
hold a hearing on the issue pertaining to plea counsel’s effectiveness only.
However, because the remaining issues are without merit, we conclude that
the PCRA court not abuse its discretion in declining to hold a hearing on
those issues.
Further, Appellant cites no relevant case law to support his bald
allegation that the trial court abused its discretion by failing to “prepare an
opinion on all the issues in appellant’s Rule 1925(b) statement.” Appellant’s
Brief at 33. Although not titled a Rule 1925(a) Opinion, the PCRA court did
submit a “Statement of Reasons” noting that Appellant appealed from its
Order and directing our attention to its Rule 907 Order and Opinion. The
court’s filing of this Statement does not support Appellant’s concern that this
Court “could be[] unable to review” Appellant’s issues.14 Id. at 33. We
____________________________________________
14 Further, we note that contrary to Appellant’s belief, it is not within this
Court’s authority at this juncture to “make a determination that appellant is
guilty of all charges.” Appellant’s Brief at 34. The jury has already done
that and this Court affirmed its determination on Appellant’s direct appeal.
See Commonwealth v. Bogle, No. 1078 MDA 2011 (Pa. Super. filed July
19, 2012).
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were, in fact, able to conduct a complete review of the record pertaining to
each of the issues Appellant addressed in his Brief.
FAILURE TO REMOVE COUNSEL – Issue 6
With respect to Appellant’s sixth and final issue, he has failed to
provide any discussion of the issue with reference to the record, relevant
case law, or analysis in his Brief beyond mentioning the issue in his
summary section. Accordingly, the issue is waived for lack of development.
Moreover, to the extent we are able, we ascertain that the gist of the issue
is that PCRA counsel provided ineffective assistance of counsel. We have
addressed this issue, supra.
Order vacated; case remanded for the appointment of counsel and an
evidentiary hearing on the issue of plea counsel’s effectiveness. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
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Com. v. Bogle, F.
Combined Opinion