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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ROBERT SPIVEY, : No. 1330 EDA 2016
:
Appellant :
Appeal from the PCRA Order, April 8, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0000470-2012
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Robert Spivey appeals pro se from the April 8, 2016 order entered in
the Court of Common Pleas of Philadelphia County which dismissed, without
a hearing, his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We previously set forth the following:
The PCRA court set forth the following procedural
history:
On October 24, 2011, [appellant]
was arrested and charged with Murder
and related offenses. On March 4, 2013,
[appellant] elected to be tried by a jury.
On March 8, 2013, the jury returned
guilty verdicts to First-Degree Murder
and Carrying a Firearm in Public in
Philadelphia.[][Footnote 1] Sentencing
was deferred until April 1, 2013, at which
time this Court imposed a mandatory
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sentence of life imprisonment without
parole for First-Degree Murder, with a
concurrent sentence of one to two years
for Carrying a Firearm in Public in
Philadelphia.
[Footnote 1] All other
charges were nolle prossed.
On May 1, 2013, [appellant] filed a
timely Notice of Appeal. On May 29,
2013, [appellant] filed a timely
[Pa.R.A.P.] 1925(b) statement. [. . .] On
June 6, 2013, this Court filed its opinion
finding [appellant’s] claims meritless.
On February 21, 2014, [the] Superior
Court affirmed the judgment of sentence.
On September 9, 2014, [appellant]
timely filed a [PCRA] petition and motion
to proceed pro se. On October 23,
2015, this Court held a Grazier hearing
in which [appellant] requested counsel to
be appointed. On the same day,
David Rudenstein, Esquire was appointed
as PCRA counsel and entered his
appearance.
On January 6, 2016, appointed
PCRA counsel filed an amended petition.
On January 22, 2016, private counsel,
Mary Maran, Esquire entered her
appearance. Maran did not file a
supplemental petition. On March 4,
2016, the Commonwealth filed a
response to appointed PCRA counsel’s
amended petition. On March 8, 2016,
this Court found [appellant’s] claims
meritless and filed a Notice of Intent to
Dismiss under Pa.R.Crim.P. 907. On
March 28, 2016, in response to this
Court’s 907 Notice, Maran filed a “Motion
to Reconsider Denial of PCRA” on
[appellant’s] behalf.
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PCRA court opinion, 4/8/16 at 1-2 (footnote 2
omitted).
The record reflects that on April 8, 2016, the
PCRA court denied appellant’s motion to reconsider
denial of PCRA and entered an order dismissing
appellant’s PCRA petition. On April 27, 2016,
Attorney Maran filed a motion to withdraw
representation and for appointment of counsel
averring that she had been retained to represent
appellant in connection with his PCRA petition only
and that she had fulfilled that obligation. (Motion to
withdraw representation and for appointment of
counsel, 4/27/16; docket # 25.) In that motion,
Attorney Maran also averred that “[p]ursuant to
[appellant’s] request to exercise his right of appeal,
counsel has filed a Notice of Appeal to the Superior
Court and served all parties.” (Id.) Appellant’s
notice of appeal was docketed on April 27, 2016.
(Notice of appeal, 4/27/16; docket # 24.)
The record further demonstrates that on
April 29, 2016, the PCRA court granted
Attorney Maran’s motion to withdraw as counsel.
The lower court docket reveals that on May 3, 2016,
Attorney Todd Michael Mosser entered his
appearance on behalf of appellant, and an
“appointment notice” was filed. The record further
reflects that the PCRA court did not order appellant
to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and the PCRA
court did not file a Rule 1925(a) opinion.
On August 24, 2016, appellant filed an
application to proceed pro se on appeal with this
court. On September 15, 2016, this court entered a
per curiam order that directed the PCRA court “to
conduct an on-the-record determination as to
whether the [a]ppellant’s waiver of counsel is
knowing, intelligent and voluntary, pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998), and to provide written notice of its
determination to the Prothonotary of this Court
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within sixty (60) days.” (Order of court, 9/15/16
(emphasis added).) On September 30, 2016, the
PCRA court entered the following order, which it filed
in this court on March 3, 2017:
AND NOW, this 30th day of
September, 2016, after consideration of
the Motion Proceed [sic] Pro Se by
[appellant,] it is ORDERED that the
Motion Proceed [sic] Pro Se is
GRANTED.
PCRA Hearing. Defense Motion to
Proceed Pro Se is GRANTED. Previous
Defense Counsel Todd Mosser is Ordered
to Send [appellant] Any Documents in
Relation to this Case. [. . .] Atty: Todd
Mosser is Removed, [appellant]
Pro Se[.]
Order of court, 9/30/16.
Commonwealth v. Spivey, No. 1330 EDA 2016, unpublished memorandum
at 1-4 (Pa.Super. filed November 13, 2017).
At that point, because the certified record before us did not contain the
September 30, 2016 Grazier hearing transcript, we remanded again with
instructions. (Order of court, 11/17/17.) On November 21, 2017, the trial
court filed a response order and attached a copy of the September 30, 2016
Grazier hearing transcript.
With respect to waiver of counsel, we note that an appellant validly
waives his rule-based right to counsel for PCRA purposes when the waiver of
counsel colloquy demonstrates that the defendant understood “(1) his right
to be represented by counsel; (2) that if he waived this right, he will still be
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bound by all normal procedural rules; and (3) that many rights and potential
claims may be permanently lost if not timely asserted.” Commonwealth v.
Robinson, 970 A.2d 455, 459 (Pa.Super. 2009) (citations omitted).
Here, the September 30, 2016 colloquy demonstrates that appellant
acknowledged that he understood his right to be represented by counsel.
(Notes of testimony, 9/30/16 at 8-9.) The colloquy also reveals that
appellant acknowledged that he understood that he would be bound by the
applicable procedural rules of court and that if he failed to timely assert his
rights, those rights may be permanently lost. (Id. at 9-10.) Therefore, the
colloquy demonstrates that appellant’s decision to proceed pro se on direct
appeal was a knowing, intelligent, and voluntary one. We will now review
appellant’s issues on the merits.
Appellant raises the following issues for our review:
[1.] Did the PCRA court error [sic] by not allowing
newly retained counsel to amend appellant’s
[PCRA] petition where the petition was
defective as filed whereas the relief sought
could not have been obtained due to defect
[sic]?
[2.] Was appellant denied his rule based right to
counsel on his first PCRA petition where
counsel’s amended petition did not comport
with the contents of Pa.R.Crim.P. 902?
[3.] Trial counsel was ineffective for failing to
attack affidavit [sic] of probable cause which
omitted reference to victim and cousin having
weapon prejudicing appellant to the extent
that he would not have been charged with
first-degree murder.
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[4.] Trial counsel was ineffective for failing to call
Tauheed Hood as a defense witness.
[5.] Trial counsel was ineffective for failing to call
appellant to testify on his own behalf.
[6.] Trial counsel was ineffective for failing to call
Sharona Council as a defense witness.
Appellant’s brief at 4 (capitalization omitted).
We limit our review of a PCRA court’s decision to examining whether
the record supports the PCRA court’s findings of fact and whether its
conclusions of law are free from legal error. Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s
findings and the evidence of record in a light most favorable to the prevailing
party. Id. To be entitled to PCRA relief, the petitioner bears the burden of
establishing, by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of the circumstances enumerated in
42 Pa.C.S.A. § 9543(a)(2).
Appellant first complains that the PCRA court erred when it denied
Attorney Mary Maran, who appellant’s family privately retained to represent
appellant as PCRA counsel, permission to amend the amended PCRA petition
that court-appointed PCRA counsel had filed on appellant’s behalf. This
claim is not cognizable under the PCRA. In this issue, appellant neither
attacks his sentence nor alleges his innocence with respect to his
convictions. Appellant advances no assertion that his conviction or sentence
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resulted from a constitutional violation, ineffective assistance of counsel, an
unlawfully-induced plea, obstruction by government officials of his right to
appeal, an illegal sentence, or a lack of jurisdiction; and he makes no claim
that he has obtained newly discovered evidence. 42 Pa.C.S.A. § 9543(a)(2)
(setting forth requirements for PCRA relief eligibility). Therefore, because
appellant’s first claim does not fall within the scope of the PCRA, it cannot be
reviewed under the PCRA.1
1 We note that the Pennsylvania Rules of Criminal Procedure provide that the
PCRA court “may grant leave to amend . . . a petition for post-conviction
collateral relief at any time,” and that amendment “shall be freely allowed to
achieve substantial justice.” Pa.R.Crim.P. 905(A); see also
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014). “[I]t is
clear from the rule’s text that leave to amend must be sought and obtained.”
Baumhammers, 92 A.3d at 730.
Here, nothing in the certified record before us demonstrates that
Attorney Maran sought leave of court to amend the amended PCRA petition.
Although appellant attaches to his brief a copy of correspondence dated
April 25, 2016, that he received from Attorney Maran wherein she states
that the trial court “refused to allow me to amend [appointed PCRA counsel’s
amended] petition,” that correspondence is not part of the certified record
and could not be considered. “Any document which is not part of the official
certified record is considered to be non-existent, which deficiency may not
be remedied by inclusion in the reproduced record[,]” and “where a review
of an appellant’s claim may not be made because of such a defect in the
record, we may find the issue waived.” Eichman v. McKeon, 824 A.2d
305, 316 (Pa.Super. 2003), citing Pa.R.A.P. 1921. We further note that the
record reflects that in response to the PCRA court’s Rule 907 Notice,
Attorney Maran filed a “motion to reconsider denial of PCRA,” but failed to
raise appellant’s current claim that the PCRA court erred in prohibiting her
from filing an amended petition in that motion. Therefore, notwithstanding
the fact that appellant’s first claim is not cognizable under the PCRA, as well
as the fact that the record fails to demonstrate that Attorney Maran sought
leave to amend the amended PCRA petition, appellant’s failure to raise this
issue in the PCRA court would have resulted in waiver of the issue on appeal.
See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa.Super. 2012)
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The remainder of appellant’s complaints allege ineffective assistance of
court-appointed PCRA counsel or trial counsel.
Counsel is presumed effective, and in order to
overcome that presumption a PCRA petitioner must
plead and prove that: (1) the legal claim underlying
the ineffectiveness claim has arguable merit;
(2) counsel’s action or inaction lacked any
reasonable basis designed to effectuate petitioner’s
interest; and (3) counsel’s action or inaction resulted
in prejudice to petitioner. With regard to reasonable
basis, the PCRA court does not question whether
there were other more logical courses of action
which counsel could have pursued; rather, [the
court] must examine whether counsel’s decisions
had any reasonable basis. Where matters of
strategy and tactics are concerned, [a] finding that a
chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually
pursued. To demonstrate prejudice, a petitioner
must show that there is a reasonable probability
that, but for counsel’s actions or inactions, the result
of the proceeding would have been different. Failure
to establish any prong of the [] test will defeat an
ineffectiveness claim.
Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).
With respect to ineffective assistance of PCRA counsel, appellant first
alleges that he was denied his rule-based right to counsel on his first PCRA
petition because appointed counsel’s amended PCRA petition requested an
(finding that a petitioner’s failure to raise a claim of ineffectiveness in
response to a Rule 907 Notice results in waiver of the claim on appeal); see
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
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evidentiary hearing, but appointed PCRA counsel failed to include a witness
certification pursuant to Pa.R.Crim.P. 902(a)(15).
Our review of the record reveals that on March 8, 2016, the PCRA
court filed its notice of intent to dismiss appellant’s PCRA petition pursuant
to Pa.R.Crim.P. 907 (Rule 907 Notice). Appellant then filed a timely
response to the PCRA court’s Rule 907 Notice. In that response, however,
appellant did not allege court-appointed PCRA counsel’s ineffectiveness for
failure to include a witness certification in the amended PCRA petition.
Consequently, appellant’s failure to raise this claim of ineffectiveness in his
response to the Rule 907 Notice results in waiver of this claim on appeal.
See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa.Super. 2012)
(finding that “issues of PCRA counsel effectiveness must be raised in a serial
PCRA petition or in response to a notice of dismissal before the PCRA
court”); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
Appellant next claims that court-appointed PCRA counsel was
ineffective for failing to attack the affidavit of probable cause. The record
reflects that appellant failed to raise this claim of ineffectiveness in his
response to the Rule 907 Notice and, therefore, waives this claim on appeal.
See Ford, 44 A.3d at 1198; Pa.R.A.P. 302(a).
In his final three claims, appellant alleges that trial counsel was
ineffective for failing to call Tauheed Hood, appellant, and Sharona Council
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as defense witnesses. The learned PCRA court resolved these issues as
follows:
[Appellant first] claims that trial counsel was
ineffective when he failed present [sic] testimony
from a known witnesses [sic], Tauheed Hood.
[Appellant] alleges that Hood would have offered
testimony supporting a justification claim in that he
saw [Jermaine] Harvin with a gun before the
shooting. [Appellant] argues that this testimony may
have shown that [appellant] did not act with malice
or specific intent to kill when he shot [the victim].
This claim lacks arguable merit as [appellant]
overlooks the fact that he agreed with trial counsel
not to call Hood to testify. It is well-settled that an
ineffectiveness claim will fail for the fundamental
reason that [appellant] agreed with trial counsel’s
decision not to call the witnesses in question.
Commonwealth v. Paddy, 800 A.2d 294 (Pa.
2002); see also Commonwealth v. Rios, 920 A.2d
790, 803 (Pa. 2007)[,] abrogated on other
grounds by Commonwealth v. Tharp, 101 A.3d
736 (Pa. 2014) (finding that an ineffectiveness claim
for failure to call a witness will lack arguable merit
where a petitioner made a knowing, intelligent, and
voluntary decision at trial not to call the witness.).
Before voir dire, [appellant] was well aware
that the Commonwealth would not call Hood as a
witness and that it was his decision whether to call
him.
TRIAL COUNSEL: We have not added
any names to the witness list. I’ve seen
[appellant]. Mr. Trimble from my office
has seen [appellant]. There are no
witnesses from my understanding that
need to be seen[,] interviewed[,] or
called. So I just want to make sure
that’s accurate because I didn’t add that
to the list. Is that correct, [appellant]?
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[APPELLANT]: Yes.
THE COURT: So you know, [appellant],
we did have a conversation before you
were brought out that one of the names
on the witness list, is it pronounced
Tauheed Hood?
[THE COMMONWEALTH]: Yes.
THE COURT: The Commonwealth
doesn’t intend to call and the
Commonwealth doesn’t have to call all
the witnesses, but there may be, your
counsel suggested that you might want
to call him. If that is true, you don’t
have to make that decision today. You’ll
have to make that decision tomorrow so
we can make sure he’s here Thursday.
[APPELLANT]: Yes.
THE COURT: All right.
[TRIAL COUNSEL]: Do you understand
that?
[APPELLANT]: Yes.
THE COURT: So up until this point
you’re satisfied with the representation
of [trial counsel]?
[APPELLANT]: Yes.
THE COURT: [] You’re prepared for trial
and you want to take your chances with
the jury trial; is that correct?
[APPELLANT]: Yes, Your Honor.
N.T. 3/04/13 at [10]-12. At the close of the
Commonwealth’s case, this Court colloquied
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[appellant] again during which he made a knowing
and voluntary decision not to call Hood as a witness.
[TRIAL COUNSEL]: Judge, prior to doing
that, if I may, there was also a witness
by the name of Tauheed Hood you’ve
heard reference to. I think the Court has
even heard reference to the statement.
Some of what Mr. Hood says is beneficial
to my client. Some of what Mr. Hood
says is detrimental to my client. In
addition to that, Mr. Hood is going to be
ornery, defensive[,] and non-cooperative
both to the Commonwealth and myself.
It is my opinion and I’ve given it to my
client that this witness will not help our
case[;] but I told him ultimately the
decision whether to call Mr. Hood or not
is his decision, ultimately. My client has
agreed that for strategic reasons we’re
not going to call Mr. Hood this morning.
The defender who represented Mr. Hood
was kind enough to meet with me. I met
with Mr. Hood personally at the lunch
break for about forty-five minutes,
myself, the defender[,] and Mr. Trimble,
and discussed what he may or may not
say. He appeared to be very
uncooperative and apprehensive. For
those reasons, is it correct, [appellant],
that you agree with my decision not to
call Mr. Hood?
[APPELLANT]: Yes.
THE COURT: And [appellant], just so
we’re clear, you know what your
attorney may or may not argue. I’m sure
he’s discussed that with you. But one of
the issues that we were having is[,] and
you know that I let your attorney explore
certain issues because there was a
suggestion, a suggestion in the
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statement from Mr. Hood -- I’m not
saying it was positive or automatic -- but
a suggestion possibly upon which your
attorney could have specifically asked for
a justification or a self-defense
instruction, and I just want to make sure
that [trial counsel] discussed that with
you.
[APPELLANT]: Yes.
N.T. 3/07/13 at 179-81. Shortly thereafter, this
Court made sure that [appellant] agreed with trial
counsel’s decision not to call Hood to testify. Id. at
183. This Court also confirmed with [appellant] that
he had had sufficient information and consultation
with his attorney to make that decision. Id.
In his response to this Court’s [907 Notice],
[appellant] argues that because trial counsel
indicated in his opening argument that this was a
case of self-defense, counsel had no choice but to
call Hood as a witness to comport with that
theory.[Footnote 4] This argument is not
persuasive. First, [appellant] failed to provide any
affidavits from Hood regarding his availability,
willingness to testify, or the substance of his
testimony. See Commonwealth v. Khalil, 806
A.2d 415, 422 (Pa.Super. 2002) (holding that
“ineffectiveness for failing to call a witness will not
be found where a defendant fails to provide affidavits
from the alleged witnesses indicating availability and
willingness to cooperate with the defense.”).
[Footnote 4] A month after the murder,
Hood gave a statement to police in which
he stated that right before the murder,
he saw [Jermaine] Harvin with a gun in
his hand, peeking around an alleyway.
He then saw [appellant] get out of a car
and point a gun at Harvin and [the
victim]. He claimed that Harvin began to
run and then [appellant] fired his gun in
the direction of Harvin and [the victim].
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See August 15, 2011 Investigation
Interview Record of Tauheed Hood.
The record also reflects that trial counsel had a
reasonable basis for not calling Hood to testify. After
counsel had interviewed Hood, trial counsel stated—
on the record—that he believed some of Hood’s
testimony would be detrimental to his client.
Further, that Hood would be ornery, defensive, and
non-cooperative. N.T. 3/07/13 at 179-81. As noted
above, after a discussion with counsel, [appellant]
agreed with this assessment. Id. Because the
record is clear on the reasons why trial counsel did
not present Hood as a witness, no evidentiary
hearing is required. See Commonwealth v.
Eichinger, 108 A.3d 821 (Pa. Super. 2014) (stating
that a PCRA court is only required to hold a hearing
where the petition, or the Commonwealth’s answer,
raises an issue of material fact.). Thus, no relief is
warranted.
[Appellant] also alleges that trial counsel was
ineffective for failing to call [appellant’s] mother
(Sharona Council) as a witness.[Footnote 5] In his
response to this Court’s 907 Notice of Intent to
Dismiss, [appellant] claims that trial counsel should
have called his mother to the stand to comport with
his theory of self-defense. This claim also lacks
arguable merit. First, [appellant], again, failed to
provide any affidavits from the witness regarding her
availability, willingness to testify, or the substance of
their testimony. See Khalil, supra. Second,
[appellant] agreed with trial counsel on the record
that no more witnesses needed to be seen,
interviewed, or called. N.T. 3/04/13 at 1-12; see
also Commonwealth v. Paddy, supra. Third,
[appellant’s] mother did not actually witness the
shooting. She told police that she heard what she
thought were firecrackers and then went to a window
to look outside. There, she saw “Tweetie,” whom
she identified as [Jermaine] Harvin, pointing a gun at
[appellant], but the shooting by then had
ended.[Footnote 6]
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[Footnote 5] In his amended petition,
PCRA counsel (Rudenstein) reserved this
issue, but did not brief it, claiming that
he did not have the necessary
information.
[Footnote 6] This information is from
Ms. Counsel’s [sic] statement to police,
given on July 20, 2011. See July 20,
2011 Investigation Interview Record of
Sharona Council.
Finally, her testimony would have been largely
inculpatory, as it would have corroborated the bulk
of Harvin’s testimony. For instance, Council told
police that something must have been wrong with
Harvin’s gun because when he pointed it at
[appellant] he had “a really good aim at [him]” but
did not fire. Harvin testified that after [appellant]
shot [the victim], he (Harvin) pulled his gun and
tried to shoot [appellant], but that the gun did not
fire. N.T. 3/05/13 at 57-62. Council’s statement
also corroborated Harvin’s testimony regarding the
motive for the shooting. When asked by detectives
why [appellant] and Harvin would be shooting at
each other, Council answered “drugs.” N.T. 3/05/13
at 3-86. For these reasons, [appellant] is not
entitled to relief.
In his response to this Court’s 907 Notice,
[appellant] asserts that the argument that he was
colloquied and agreed with trial counsel not to call
his mother and Hood as witnesses is meritless.
[Appellant] claims that his colloquy was not knowing,
intelligent, and voluntary because it was “limited to
the legal advice behind it.” This Court is baffled by
this argument, as [appellant] cited no case law to
support it. In any event, as noted above, the record
clearly reflects that [appellant] made a knowing,
intelligent, and voluntary decision not to present
Hood as a witness. N.T. 3/07/13 at 1-12, 179-81,
183. Trial counsel also had a reasonable basis for
not presenting Hood, and [appellant]—well aware of
Hood’s potential detrimental testimony—agreed with
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trial counsel’s assessment. Id. at 1-12, 179-81,
183. This Court also confirmed with [appellant] that
he had had sufficient information and consultation
with his attorney to make that decision. Id.
Further, as previously noted, [appellant] agreed with
trial counsel on the record that no more witnesses
needed to be seen, interviewed, or called, which
would have included his mother and Hood. N.T.
3/04/13 at 1-12. [Appellant] is therefore not
entitled to relief.
Lastly, [appellant] claims that trial counsel was
ineffective for failing to present him as a witness.
[Appellant] argues that his testimony may have
generated a justification jury instruction and/or an
imperfect self-defense instruction, potentially leading
to a verdict of involuntary manslaughter.
This claim not only lacks arguable merit[,] it is
baseless. The decision to testify in one’s own behalf
is ultimately to be made by the accused after full
consultation with counsel. Commonwealth v.
Thomas, 783 A.2d 328, 334 (Pa. Super. 2001). To
support an ineffectiveness claim for failing to call
[appellant] to the stand, [appellant] “must
demonstrate either that (1) counsel interfered with
his client’s freedom to testify, or (2) counsel gave
specific advice so unreasonable as to vitiate a
knowing and intelligent decision by the client not to
testify in his own behalf.” Id. [Appellant] fails to
argue either prong of this ineffectiveness test. In
any case, the record reflects that [appellant] was
well informed that he had an absolute right to
testify, and that the decision to testify was his, and
his alone. The record also reflects that he knowingly
and voluntarily waived this right.
THE COURT: So you and your attorney
have discussed the fact that you have
the right to testify in this matter. Would I
be correct?
[APPELLANT]: Yes.
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THE COURT: I want you to be clear
that[,] as your attorney has told you,
that you have an absolute right to testify
in the case and the decision is yours and
yours alone. Did he tell you that?
[APPELLANT]: Yes.
THE COURT: So he just put on the
record his decision or actually your
decision not to call the witness Mr. Hood.
He also discussed with you your right to
testify; is that correct?
[APPELLANT]: Yes, Your Honor.
...
THE COURT: Now, you’ve discussed with
your attorney the fact that you have an
absolute right to testify. In other words,
[trial counsel] can only advise you.
Ultimately, you make that decision. Do
you understand that?
APPELLANT: Yes, Your Honor.
...
THE COURT: [] You have the ultimate
decision-making authority in that regard.
[APPELLANT]: Yes.
THE COURT: You’ve heard me advise
the jury during my prior instructions that
the [d]efendant has no obligation to
testify and that the jury is not to make a
negative or adverse inference against
you if you do not testify. Do you
remember that?
[APPELLANT]: Yes.
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THE COURT: [] Do you want me to
re-instruct the jury on that?
[APPELLANT]: Yes, Your Honor.
...
THE COURT: [] Has anyone forced you
to give up your right to testify?
[APPELLANT]: No, Your Honor.
THE COURT: Has anyone threatened
you?
[APPELLANT]: No, Your Honor.
THE COURT: Has anyone promised you
something like you’ll get a not guilty if
you don’t testify?
[APPELLANT]: No, Your Honor.
THE COURT: So basically by your
answer, what I’m concluding is that
you’re making this decision of your own
free will. Is that accurate?
[APPELLANT]: Yes, Your Honor.
THE COURT: Are you satisfied with the
representation of your attorney?
[APPELLANT]: Yes.
N.T. 3/07/13 at 182-86. [Appellant] cannot be
deprived of his right to testify when he knowingly
and voluntarily waived that right. See
Commonwealth v. O’Bidos, 849 A.2d 243, n.2
(Pa.Super. 2004) (“appellant was not deprived of his
fundamental right [to testify] because he knowingly
and voluntarily waived his right to testify.”).
Because this claim is devoid of merit, [appellant] is
not entitled to relief.
- 18 -
J. S53038/17
Trial court opinion, 4/8/16 at 6-18 (some brackets in original; ellipses and
emphasis in original). In viewing the PCRA court’s findings and the evidence
of record in the light most favorable to the Commonwealth as the prevailing
party, the record supports the PCRA court’s findings of fact and its
conclusions of law are free from legal error. Therefore, appellant’s
remaining claims lack arguable merit and necessarily fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/18
- 19 -
Com. v. Spivey, R.
Combined Opinion