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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTOINE L RIGGINS :
:
Appellant : No. 1110 EDA 2016
Appeal from the PCRA Order November 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0204501-2006
BEFORE: PANELLA, J., RANSOM, J., and PLATT*, J.
MEMORANDUM BY RANSOM, J.: FILED MARCH 29, 2018
Appellant, Antoine L. Riggins, appeals from the order entered November
22, 2013, denying his first petition filed under the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On March 6, 2007, a jury convicted Appellant of first degree murder,
conspiracy, robbery, theft, receipt of stolen property, possession of an
instrument of crime, and a violation of the Uniform Firearms Act.1 Appellant
was sentenced on May 15, 2007, to life imprisonment plus a consecutive
prison sentence of ten to twenty years. He did not file a direct appeal.
In August 2007, Appellant pro se and timely filed a PCRA petition to
reinstate his direct appeal rights nunc pro tunc. This request was granted.
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1 18 Pa. C.S. §§ 2502, 903, 3701, 3921, 3925, 907, and 6106, respectively.
* Retired Senior Judge assigned to the Superior Court.
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Appellant timely appealed, but his judgment of sentence was affirmed on June
7, 2010. See Commonwealth v. Riggins, 4 A.3d 675, (Pa. Super 2010)
(unpublished memorandum), appeal denied, 20 A.3d 1211, (Pa. 2011).
The Pennsylvania Supreme Court denied allocatur on April 26, 2011.
Appellant did not petition for certiorari with the United States Supreme Court.
Accordingly, his sentence became final at the conclusion of the ninety-day
time period for seeking review on July 25, 2011. See 42 Pa.C.S. § 9945(b)(3)
(a judgment of sentence becomes final at the conclusion of direct review or
the expiration of the time for seeking review); see also Commonwealth v.
Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (noting that Sup.Ct.R.13 grants
an Appellant ninety days to seek review with the United States Supreme
Court). Thus, Appellant had until July 25, 2012 to timely file a PCRA petition.
Id.
On April 23, 2012, Appellant timely and pro se filed a PCRA petition
seeking an evidentiary hearing and raising several claims of ineffectiveness of
counsel, including that: (1) trial counsel failed to introduce psychological
evidence and conduct an investigation into petitioner’s psychological makeup;
(2) trial counsel failed to object to several Bruton violations; (3) trial counsel
failed to object to Appellant’s inability to confront the medical examiner who
conducted the autopsy on the victim’s body; (4) trial counsel failed to object
to jurisdiction because Appellant was arrested without a warrant and he was
illegally arrested; (5) trial counsel failed to assure that the in-court outburst
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by the victim’s mother did not affect the jury’s ability to render a fair verdict;
(6) trial counsel failed to object to the admission of a letter that was
“purportedly written by Appellant in an attempt to suborn perjury;” (7) trial
counsel failed to object to several instances of prosecutorial misconduct; and
(8) trial counsel failed to file a motion to sever the case from his co-defendant.
The court appointed PCRA counsel, who submitted a Turner/Finley2 no merit
letter and motion to withdraw as counsel. See Finley Letter, 4/11/13, at 3-4.
Appellant pro se filed a response to counsel’s Turner/Finley letter. The
docket indicates that Pa.R.Crim.P. 907 notice would be sent, but no such
notice appears in the record. However, Appellant responded to whatever
notice he did receive, raising several claims not originally raised in his PCRA
petition. The new claims were: (1) trial counsel failed to conduct a reasonable
investigation of Appellant’s case; (2) trial counsel failed to elicit testimony and
conducted ineffective cross examination; and (3) trial counsel failed to rebut
the Commonwealth’s witnesses at the suppression hearing. See Appellant’s
Pro Se Brief at 4-5.
On November 22, 2013, Appellant’s petition was formally dismissed.
Appellant did not appeal. Instead, he wrote letters to the Post Trial Unit in
Philadelphia, asking about the status of his petition. He received a response
on January 29, 2014, informing him that his petition had been dismissed.
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2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On February 11, 2014, Appellant pro se filed a second, PCRA petition.
Counsel was appointed and filed an amended PCRA petition, arguing that the
January 29, 2014 letter from the Post Trial Unit, constituted newly discovered
evidence such that Appellant established a time bar exception. Appellant
claimed he had never received notice of the PCRA dismissal and, accordingly,
could not timely appeal. On March 18, 2016, Appellant’s petition was granted,
and his PCRA appellate rights were reinstated nunc pro tunc. PCRA counsel
was permitted to withdraw, and PCRA appellate counsel was appointed. A
timely PCRA appeal was filed.
Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
Herein, Appellant presents the following seven issues for our review:
1. Did the PCRA court err when it accepted PCRA counsel's letter of no-
merit, permitted him to withdraw and dismissed Appellant's PCRA
petition in the absence of an evidentiary hearing since PCRA counsel
was ineffective as there were numerous meritorious issues
warranting the filing of an amended PCRA petition and the granting
of an evidentiary hearing?
A. Was trial counsel ineffective when he failed to challenge the
Bruton violation occurring at trial?
B. Was trial counsel ineffective when he failed to seek a
severance of Appellant's case from the co-defendant's?
C. Was trial counsel ineffective when he failed to conduct a
reasonable investigation of Appellant's case prior to trial?
D. Was trial counsel ineffective when he failed to elicit testimony
and conduct effective cross-examination that would have
supported Appellant's defense?
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E. Was trial counsel ineffective when he failed to rebut the
Commonwealth's witnesses at the suppression hearing and at
trial?
F. Was trial counsel ineffective when he failed to object to
instances of prosecutorial misconduct?
G. Was trial counsel ineffective when he failed to raise the issue
that Appellant's mandatory life sentence is Cruel and Unusual
in violation of the Eight Amendment to the United States
Constitution and Article I, Section 13 of the Pennsylvania
Constitution?
Appellant’s Brief at 4-5.3
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
is free of legal error. See Commonwealth v. Ragan, 923 A.2d 1169, 1170
(Pa. 2007).
In this case, the court dismissed Appellant’s petition without a hearing.
See PCRA Court Order, 11/22/13. The PCRA court has the discretion to
dismiss a petition without a hearing when the court is satisfied “that there are
____________________________________________
3 In Appellant’s initial PCRA petition, he raised eight issues. See Appellant’s
PCRA petition, 4/23/12. at 5-42. Of these eight issues, only three of these
issues were presented in Appellant’s counseled PCRA appeal and are labeled
A, B and F. Since, Appellant did not raise the remaining five issues, they are
waived for the purpose of this appeal and will not be addressed. See
Pa.R.A.P. 2116(c). We also note that issues C, D, and E are waived because
Appellant raised them for the first time in his response to the court’s 907
notice, and without seeking leave to amend. See Commonwealth v.
Derrickson, 923 A.2d 466, 468-69 (Pa. Super. 2007) (stating that Appellant’s
response to the 907 letter issued by the PCRA court should only raise
objections to issues already argued in the corresponding PCRA petition and
should not raise new issues.).
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no genuine issues concerning any material fact, the defendant is not entitled
to post-conviction relief, and no legitimate purpose would be served by any
further proceedings.” Pa.R.Crim.P. 907(1); see also Commonwealth v.
Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).
Appellant initially asserts at paragraph 1, that his first PCRA counsel was
ineffective. See Appellant’s Brief at 10-13. We presume counsel is effective,
and Appellant must prove otherwise. See Commonwealth v. Cox, 983 A.2d
666, 678 (2009). To prevail, Appellant must plead and prove by a
preponderance of evidence that: (1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective, reasonable basis; (3)
and that Appellant suffered actual prejudice as a result of counsel’s actions or
inaction. See Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).
To establish prejudice, Appellant must show that there is a reasonable
probability that the outcome of the proceeding would have been different but
for counsel’s errors. Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.
2008). Counsel may not be deemed ineffective for failing to pursue a meritless
claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003).
Indeed, a claim will be denied if the petitioner fails to meet any one of these
requirements. See Springer, 961 A.2d at 1267.
Appellant claims that his initial PCRA counsel was ineffective for filing a
Turner/Finley letter and that the trial court erred in granting his motion to
withdraw. See Appellant’s Brief at 10-13. This issue was properly raised on
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appeal, although not raised in Appellant’s initial PCRA petition. See
Commonwealth. v. Henkel, 90 A.3d 16, 23 (Pa. Super. 2014) (stating that
“it was well settled that PCRA petitioners not only could, but had to assert
claims of PCRA counsel ineffectiveness for the first time on appeal if they were
no longer represented by that PCRA attorney.”).
Counsel was properly permitted to withdraw after fulfilling the
requirements of Turner/Finley. Where counsel determines that there are no
meritorious issues raised in a PCRA petition, and the court agrees, counsel
may withdraw after filing a “no merit” letter. See Turner, 544 A.2d at 928-
29; Finley, 550 A.2d at 215. Specifically, (1) counsel must detail the nature
and extent of his review; (2) counsel must list each issue the petitioner wishes
to have reviewed; (3) counsel must explain why petitioner’s issues are
meritless; (4) the PCRA court conducts its own independent review of the
record; and (5) the PCRA court agrees with counsel that the petition is
meritless. Id. Attorney Stephen O’Hanlon complied with the requirements of
Turner/Finley, and the PCRA court conducted its own review of the record
and found Appellant’s issues to be meritless. Accordingly, there was no error
in the court’s order granting counsel’s petition to withdraw and dismissing the
PCRA petition. See Turner, 544 a.2d at 928-29.
In Appellant’s second issue “A”, he contends that trial counsel was
ineffective when he did not object to an alleged Bruton violation. See
Appellant’s Brief at 13 (citing to Bruton v. United States, 88 S.Ct. 1620,
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1627 (1968) (holding that the admission of an incriminating, out-of-court
statement by a non-testifying co-defendant violates the Sixth Amendment
right to confrontation, even with limiting instructions to the jury)). Appellant
argues that despite the redaction of his co-defendant Saul Rosario’s statement
and cautionary instructions to the jury, he suffered prejudice because the
redactions were obvious and because the prosecution relied heavily upon
Rosario’s statement to discredit Appellant’s defense. Id. at 13, 19-20.
With regard to Bruton claims,
[t]he Confrontation Clause guarantees a criminal defendant the
right to cross-examine witnesses. Ordinarily, a witness whose
testimony is introduced at a joint trial is not considered a witness
“against” a defendant if the jury is instructed to consider the
testimony only against a co-defendant. This principle is in accord
with the well-established presumption that jurors will abide by
their instructions. In Bruton, however, the United States
Supreme Court recognized that there are some contexts in which
the risk that the jury will not, or cannot, follow instructions is so
great, and the consequences of failure so vital to the defendant,
that the practical and human limitations of the jury system cannot
be ignored. Accordingly, the Bruton Court held that, if a non-
testifying co-defendant's confession directly and powerfully
implicates the defendant in the crime, then an instruction to the
jury to consider the evidence only against the co-defendant is
insufficient, essentially as a matter of law, to protect the
defendant's confrontation rights.
Commonwealth v. Cannon, 22 A.3d 210, 217–18 (Pa. 2011) (internal
citations and quotations omitted). The United States Supreme Court has
clarified that “the Confrontation Clause is not violated by the admission of a
non-testifying co-defendant’s confession with a proper limiting instruction
when … the confession is redacted to eliminate not only the defendant’s name,
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but any reference to his or her existence.” Richardson v. Marsh, 107 S.Ct.
1702, 1709 (1987). However, redactions indicated with an obvious blank, the
word “delete,” symbols, or other indications violate Bruton’s protective rule.
See Gray v. Maryland, 118 S.Ct. 1151, 1155 (1998). In Pennsylvania, our
state Supreme Court has held that substituting the neutral phrase “the guy”
or “the other guy” for the defendant’s name is an appropriate redaction.
Cannon, 22 A.3d at 218 (citing Commonwealth v. Travers, 768 A.2d 845,
851 (Pa. 2001)).
In the instant case, the co-defendant’s statement was properly redacted
using the neutral phrases “the other guy,” “this guy,” and “the guy.” See
N.T., 3/1/7, at 199-201. Thus, the redactions were compliant with the
requirements of Bruton, Travers, and Cannon. As the redactions were
proper and the statement was properly admitted, we reject Appellant’s
assertion that the Commonwealth’s reliance upon the statement was
inappropriate. Appellant’s claim lacks merit. Accordingly, he is entitled to no
relief. Loner, 836 A.2d at 132; Springer, 961 A.2d at 1267.
In issue “B”, Appellant argues that trial counsel was ineffective because
he did not seek to sever Appellant’s case from that of his co-defendant.
According to Appellant, his co-defendant’s statement to police was not
properly redacted and was prejudicial to Appellant. See Appellant’s Brief at
33. Thus, according to appellant, “counsel had a legal obligation to motion
for a severance.” Id.
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Severance is a matter within the sound discretion of the trial court. See
Commonwealth v. Freeman, 128 A.3d 1231, 1245 (Pa. Super. 2015) (citing
to Commonwealth v. Chester, 587 A.2d 1367, 1372 (Pa. 1991)).
Nevertheless, the law favors a joint trial when co-defendants are charged with
conspiracy. See Chester, 587 A.2d at 1372. A trial court is required to sever
only where the defenses of co-defendants are irreconcilable and exclusive, but
“conflicting versions of what took place, or the extents to which they
participated in it, is a reason for rather than against a joint trial because the
truth may be more easily determined if all are tried together.” Id. at 1373
(emphasis added).
As noted, supra, the admission of Rosario’s statement did not violate
Bruton. Appellant has provided no other legal basis which would require the
court to sever the trials, particularly where conspiracy was charged and where
Appellant and his co-defendant offered different versions of the events. See
Chester, 57 A.2d at 1372-73. Accordingly, the claim lacks arguable merit.
Treiber, 121 A.3d at 445.
In issue “F”, Appellant argues that trial counsel was ineffective for failing
to object to alleged prosecutorial misconduct where the prosecutor
“deliberately unraveled the redactions in Rosario’s statement.” See
Appellant’s Brief at 56. Appellant reiterates his Bruton argument, which we
have previously rejected. See Appellant’s Brief at 56-57. As stated in our
Bruton analysis, supra the prosecutor is able to comment based on the
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evidence from the trial, which included the properly redacted statement of the
co-defendant. See Cannon, 22 A.3d at 218. Additionally, Appellant concedes
in his brief that trial counsel objected to the prosecutor’s line of questioning
regarding his co-defendant’s statement. Id. The Prosecution then rephrased
the question to “what he heard in this courtroom.” Id. Thus, this claim lacks
arguable merit. See Loner, 836 A.2d at 132; Springer, 961 A.2d at 1267.
Appellant also claims the prosecutor improperly linked him to Rosario’s
statement in her opening and closing statements. See Appellant’s Brief at 58.
Pennsylvania courts have consistently held that a prosecutor is free to
comment so long as the comments are based on the evidence, are a
reasonable inference therefrom, or are merely oratory flair. Commonwealth
v. Hutchinson, 24 A.3d 277, 307 (Pa. 2011). The prosecutor is also
permitted to fairly respond to arguments raised by the defense. See
Commonwealth v. Tedford, 960 A.2d 1, 32 (Pa. 2008). However, it is
improper for the prosecutor to offer his or her personal opinion regarding the
guilt of Appellant. See Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa.
2004).
Since the prosecutor’s statements were based on properly admitted
evidence, there was no prosecutorial misconduct. Hutchinson, 24 A.3d at
307. Accordingly, trial counsel was not ineffective for failing to object. See
Loner, 836 A.2d at 132.
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Finally in issue “G”, Appellant claims that trial counsel was ineffective
for failing to argue that his life sentence was cruel and unusual punishment
because Appellant was nineteen years old at the time of his crimes. See
Appellant’s Brief at 60 (citing to Miller v. Alabama, 132 S.Ct. 2455, 2464
(2012) (holding that it is illegal to sentence a juvenile to life imprisonment
without the possibility of parole)). Appellant argues that he was a “technical
juvenile” entitled to the protection of Miller and Montgomery. Miller, 132
S.Ct. at 2464; Montgomery v. Louisiana, 136 S. Ct. 718, (2016), as revised
(Jan. 27, 2016).
This issue was properly raised on appeal, although not raised in
Appellant’s initial PCRA petition. See Commonwealth v. Jones, 737 A.2d
214, 223 (1999) (holding that as “long as this Court has jurisdiction over the
matter, a legality of sentencing issue is reviewable and cannot be waived.”).
However, Miller applies to juveniles under the age of eighteen at the
time the crimes were committed, and Appellant was nineteen years old at the
time of his offense. Id.; see also Commonwealth v. Furgess, 149 A.3d
90, 94 (Pa. Super. 2016). In Furgess, we rejected the “technical juvenile”
argument and reiterated that Miller/Montgomery relief is only available to
those under eighteen. Id. Therefore, Appellant’s claim of ineffective
assistance of counsel is without merit. Id.
Order affirmed. Jurisdiction relinquished.
Judge Platt joins the memorandum.
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Judge Panella concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:3/29/18
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