J-S82041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
v. :
:
:
JOHN CANNON, :
:
Appellant : No. 3847 EDA 2017
Appeal from the PCRA Order October 16, 2017
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000684-2012
BEFORE: LAZARUS, J., OLSON, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 25, 2019
John Cannon (Appellant) appeals pro se from the order entered on
October 16, 2017, which denied his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On January 23, 2013, Appellant was convicted in a non-jury trial of
aggravated assault (graded as a felony of the first degree), possession of
instrument of a crime, terroristic threats, and related charges.
The incident that gave rise to [Appellant’s] conviction was
recounted by the Superior Court. [Commonwealth v. Cannon,
116 A.3d 691 (Pa. Super. 2014) (unpublished memorandum).]
Briefly, [Appellant] lived in Norwood, Pennsylvania and over a
four[-]year period[, Appellant] threatened and harassed
members of two neighboring families. His hostile and abusive
behavior, including threats to shoot or stab his neighbors, was
reported to the police on many occasions. During the day of
January 7, 2012[,] police responded to [Appellant’s] complaints
about the noise level coming from his neighbors’ outside
activities. The responding officers determined that [Appellant’s]
complaints were baseless.
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*Retired Senior Judge assigned to the Superior Court.
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Later that day[,] the neighbors were watching football in
the home next door to [Appellant’s home]. Occasionally[,] the
two adult men went outside the home to smoke. [Appellant]
was intoxicated and shouted profanity-laced insults at the
neighbors when they were outside smoking. The last time the
neighbors went outside to smoke[,] a verbal altercation between
[Appellant] and the two men escalated into an assault.
[Appellant] threatened to “fucking kill” one neighbor [the Victim]
and when the Victim retorted, “just go into mommy’s house,”
[Appellant] hurtled over the fence that separated the properties
and stabbed the Victim several times. He stabbed the Victim in
his neck and arm. The Victim was rushed to the hospital and he
suffered a severed artery, ligaments and tendons, along with
trauma to his ulnar nerve, impairing his motion for months. He
suffered numbness in the arm and permanent scarring following
the attack.
PCRA Court Opinion, 1/26/2018, at 2-3 (some quotation marks omitted).
Police arrested Appellant after the incident. Appellant gave a written
statement to police in which he claimed he acted in self-defense; he stated
that the Victim attacked him with a knife, and Appellant grabbed the knife
and swung it at the Victim in self-defense. Cannon, 116 A.3d 691
(unpublished memorandum at 3).
Following a bench trial, Appellant was convicted of the aforementioned
crimes, and on April 8, 2013, he was sentenced to an aggregate term of 10
to 20 years of incarceration, followed by five years of probation. Appellant
filed a direct appeal to this Court, and on December 18, 2014, we affirmed
Appellant’s judgment of sentence. Cannon, supra. Appellant did not seek
allowance of appeal with our Supreme Court.
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On November 20, 2015, Appellant timely filed a pro se PCRA petition,
and the PCRA court appointed counsel on December 18, 2015. On
September 7, 2017, counsel filed a motion to withdraw and no-merit letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1
The PCRA court granted counsel’s petition to withdraw on September 13,
2017. On the same day, the PCRA court filed notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss the petition without a hearing.
Appellant filed a response pro se, and on October 17, 2017, the PCRA court
dismissed Appellant’s petition without a hearing. Appellant timely filed a
notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
On appeal, Appellant presents four claims for our review, and we
review each according to the following. “Our standard of review of a [] court
order granting or denying relief under the PCRA calls upon us to determine
‘whether the determination of the PCRA court is supported by the evidence
of record and is free of legal error.’” Commonwealth v. Barndt, 74 A.3d
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1 The reason for the nearly two-year delay between PCRA counsel’s
appointment and motion to withdraw appears to be attributed solely to
counsel’s numerous requests for extensions of time, and the PCRA court’s
grants thereof. Our Supreme Court has made clear that “[t]he PCRA court
[has] the ability and responsibility to manage its docket and caseload and
thus has an essential role in ensuring the timely resolution of PCRA
matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012).
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185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia, 23 A.3d
1059, 1061 (Pa. Super. 2011)).
Because Appellant’s first three claims assert ineffectiveness of trial
counsel, we bear in mind the following. We presume counsel is effective.
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). To
overcome this presumption and establish the ineffective assistance of
counsel, a PCRA petitioner must prove, by a preponderance of the evidence:
“(1) the underlying legal issue has arguable merit; (2) that counsel’s actions
lacked an objective reasonable basis; and (3) actual prejudice befell the
[appellant] from counsel’s act or omission.” Commonwealth v. Johnson,
966 A.2d 523, 533 (Pa. 2009) (citations omitted). “[A petitioner]
establishes prejudice when he demonstrates that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. A claim will be denied if the
petitioner fails to meet any one of these requirements. Commonwealth v.
Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008).
Appellant first contends that trial counsel was ineffective in failing to
seek to amend the information to include the lesser charge of aggravated
assault of the second degree. Appellant’s Brief at i. Specifically, Appellant
claims that there was insufficient evidence to support his conviction of the
more serious aggravated assault charge, a felony of the first degree, and
thus, trial counsel should have sought amendment to include the lesser
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charge.2 Id. at 4-7. In essence, Appellant is arguing that if his information
had included both a first degree and second degree aggravated assault
charge, he would not have been convicted of the more serious charge. Id.
at 7.
In considering this issue, the PCRA court found that it lacked arguable
merit, and Appellant could not show he was prejudiced. PCRA Court
Opinion, 1/26/2018, at 6. In his direct appeal, Appellant challenged the
sufficiency of the evidence to support his first-degree felony aggravated
assault conviction. Cannon, 116 A.3d 691 (unpublished memorandum at
4). While this Court found Appellant had waived review of this claim, it
nonetheless concluded that even if Appellant had not waived it, there was
sufficient evidence to support the conviction. We found that “the record
supports the trial court’s finding that Appellant committed an intentional,
knowing or reckless act, under circumstances manifesting extreme
indifference to human life when he forcefully stabbed [the Victim] with a
knife.” Id. at 10. Thus, because the evidence was sufficient to convict
Appellant of the more serious offense, there is no merit to his contention
that being charged with the lesser offense would have resulted in him being
found not guilty of the more serious offense. Accordingly, Appellant is not
entitled to relief on this claim.
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2 See 18 Pa.C.S. § 2702(a)(1), (a)(4), (b).
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Appellant’s next claim relates to trial counsel’s failing to object to the
admission of medical reports of the Victim’s physicians. Appellant’s Brief at
i. According to Appellant, because the physicians’ reports were admitted,
but the physicians did not testify, trial counsel was ineffective in failing to
object to that evidence. Id. at 7. The PCRA court determined Appellant
waived this claim for failure to raise it in his PCRA petition. PCRA Court
Opinion, 1/28/2018, at 7. We agree. Appellant did not raise this claim
before the PCRA court; it was not raised in his PCRA petition, nor was it set
forth in the Turner/Finley letter or Appellant’s pro se response to the PCRA
court’s Rule 907 notice. Appellant first raised this claim in his Rule 1925(b)
statement. Accordingly, this claim is waived. 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.”).
We now turn to Appellant’s third ineffectiveness claim, wherein he
argues that trial counsel was ineffective for entering into a stipulation to the
admission of evidence of his prior bad acts. Appellant’s Brief at i. He claims
the stipulation between Appellant and the Commonwealth to admit evidence
of the history between Appellant and the Victim was unclear, and that in any
event, the evidence was inadmissible. Id. at 9-12. The PCRA court found
this claim lacked arguable merit because the evidence was admissible.
Evidence of an ongoing and deteriorating relationship between
the parties and [Appellant’s] threats and false reports to police
throughout the day of the incident, January 7, 2012, was
admissible pursuant to [Pa.R.E.] 404(b) to demonstrate the
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sequence of events which formed the history of the case. See
Pa.R.E. 404(b); Commonwealth v. Walker, 656 A.2d 90 (Pa.
1995); Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super.
2007).
PCRA Court Opinion, 1/28/2018, at 7.
The admission into evidence of prior bad acts is within the sound
discretion of the trial court and may be reversed only upon a
showing that the court abused that discretion. While it is true
that evidence of prior bad acts or unrelated criminal behavior are
generally inadmissible, this Court has recognized that there are
certain exceptions to the rule. Evidence of criminal conduct
which tends to establish malice, motive or intent for the offense
charged is generally admissible. Furthermore, our courts will
allow evidence of prior bad acts where the distinct crime or bad
act, was part of a chain or sequence of events which formed the
history of the case and was part of its natural development.
Walker, 656 A.2d at 99 (citations and quotation marks omitted) (finding
trial counsel not ineffective for failing to object to admission of evidence of
Walker’s repeated threats and abuse of victim to show “the natural
progression of events leading up to the murder”).
As in Walker, evidence of the parties’ history, namely witness and
police officer testimony about prior incidents where police officers responded
to complaints involving Appellant and the Victim, was admitted to show the
“sequence of events which formed the history of the case and was part of its
natural development.” 656 A.2d at 99. Thus, we agree with the PCRA court
that this evidence was admissible. Based on the foregoing, Appellant’s claim
is without merit, and trial counsel was not ineffective for stipulating to this
evidence. See Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001)
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(holding that counsel will not be deemed ineffective for failing to raise a
meritless claim). Accordingly, Appellant is not entitled to relief on this claim.
Appellant’s final claim is that the police officers involved in Appellant’s
case violated his constitutional rights “in as much as they were acting in bad
faith and not in accord with normal practices and procedures.” Appellant’s
Brief at ii. Specifically, he claims that the police officers “failed to collect,
preserve and forensically test blood evidence as no officer tried to either
confirm or refute [Appellant’s] version of events.” Id. at 13.
Initially, we observe that Appellant has previously attempted to couch
this claim in terms of counsel’s ineffectiveness, see Turner/Finley Letter,
9/7/2017, at 7; Pro Se Rule 907 Response, 10/10/2017, at 3 (pagination
supplied), but he does not claim ineffectiveness of counsel for this issue on
appeal. While Appellant’s PCRA petition alleges prosecutorial, not police,
misconduct relating to this claim, see PCRA Petition, 11/20/2015, at 3A, we
will nonetheless address it since Appellant’s petition claims “‘shoddy’ police
work” in failing to conduct forensic testing led to the prosecutor’s “selective
enforcement” of his prosecution. Id.
To be eligible for PCRA relief on constitutional grounds, Appellant must
plead and prove by a preponderance of the evidence that his conviction
resulted from a “violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances of the
particular case, so undermined the truth-determining process that no
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reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(i).
The PCRA court found the claim was a “bald allegation that lack[ed]
the support of any evidence within or outside the record. It has no arguable
merit because it is patently frivolous.” PCRA Court Opinion, 1/28/2018, at
7. Appellant fails to articulate how such blood testing could have aided his
defense, and he has not asserted anything more than a general,
unsubstantiated allegation of bad faith by the police. He seems to argue
that because the police officers took pictures of the blood at the scene, but
did not test the blood itself, this failure amounts to bad faith.
We agree with the PCRA court that Appellant is not entitled to relief on
this claim, as his proffer does not demonstrate bad faith on the part of the
police. See Commonwealth v. Gibson, 951 A.2d 1110 (Pa. 2008) (holding
Gibson not entitled to PCRA relief on claim that police willfully failed to
preserve exculpatory evidence), quoting Arizona v. Youngblood, 488 U.S.
51, 58 (1988) (holding “that unless a criminal defendant can show bad faith
on the part of the police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law”). In Gibson, we stated that
“the [U.S.] Supreme Court has recognized that the police are not
constitutionally required to perform specific forensic tests on evidence
collected.” 951 A.2d at 1140, citing Youngblood, 488 U.S. at 59.
Accordingly, no relief is due.
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Because Appellant has not presented any issue on appeal that would
entitle him to relief under the PCRA, we affirm the order of the PCRA court. 3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/19
____________________________________________
3 To the extent Appellant claims ineffectiveness of direct appeal and PCRA
counsel relating to his first and second issues, see Appellant’s Brief at 7, 9,
such claims are waived for failure to include them in his Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the [Rule
1925(b) s]tatement … are waived.”); Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be
deemed waived”).
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Com. v. Cannon, J.
Combined Opinion