Com. v. Whiters, E.

J-S10024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC WHITERS :
:
Appellant : No. 842 EDA 2022

Appeal from the PCRA Order Entered March 10, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007204-2008

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 18, 2023

Eric Whiters appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful

review, we affirm.

The PCRA court set forth the factual and procedural history of this case

as follows:

On May 4, 2008, Officer Edgar Ruth (hereinafter “Officer Ruth”)[,]
of the City of Philadelphia Police Department[,] was traveling with
his partner[,] Officer Paul Tinneny (hereinafter “Officer
Tinneny”)[,] in a police car when a call came from officers
requesting more units because there was a large crowd and a
disturbance in a bar/night club in the 5300 block of Market Street.
Upon arriving at 53rd Street, the officers witnessed approximately
one hundred people on the street. A woman in the crowd to
Officer Ruth’s left pointed down the street and yelled, “They got
guns, [t]hey got guns[.]” The woman pointed to a tan Cadillac.
According to Officer Ruth, the Cadillac “spun its wheels and took
off through the crowd westbound.” Officer Ruth followed the
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Cadillac and caught up to it on Yewdall Street when the Cadillac
was boxed in by parked cars and forced to stop.

Officer Ruth got out of his car and approached the Cadillac. He
noticed that the windows were tinted and “yelled to put the
windows down.” Initially, Officer Ruth believed that there were
two people in the car, both in the front seat. Officer Ruth saw the
driver reaching for the glove box. Officer Ruth instructed the
driver to put the car in park and show his hands. When Officer
Ruth went around the rear of the car, he could see through the
tint and noticed a passenger in the backseat. The passenger was
later revealed to be [Whiters]. When Officer Ruth opened the
door, he observed a firearm, a black Kel-Tec .40 caliber, on the
floor of the Cadillac under [Whiters’] feet. He also noticed an odor
of marijuana. Officer Ruth took [Whiters] out of the Cadillac and
placed him in Officer Ruth’s vehicle.

[Whiters] was charged with possession of a firearm by a prohibited
person. [See 18 Pa.C.S.A. § 6105.] The trial court held a hearing
on a [Pa.R.Crim.P.] 600 claim on October 28, 2009[,] and it was
denied. On March 26, 2010, [Whiters] moved to suppress
evidence on the basis that he was arrested without an arrest
warrant and without probable cause and that at the time of the
arrest, he may have made statements to the police [that] were
the fruits of the illegal arrest and were given prior to the police
issuing Miranda warnings. On August 14, 2013, the trial court
heard the motion to suppress at which Officer Ruth recounted the
circumstances that led him to arrest [Whiters]. The trial court
denied the motion to suppress.

The trial court conducted a jury trial on October 1-2, 2014[,] at
which Officer Ruth reiterated his testimony from the motion to
suppress hearing and identified the firearm that was found in the
Cadillac under [Whiters’] feet. Officer Ruth demonstrated how the
firearm was positioned under [Whiters’] feet when he first saw it.

At the trial, Officer Tinneny corroborated Officer Ruth’s testimony.
Kenneth James Lay, a civilian supervisor in the laboratory of the
Philadelphia Police Department’s Firearms Identification Unit,
identified a report previously prepared by his office concerning the
firearm found in the Cadillac and testified concerning his more
recent examination of the firearm. The jury found [Whiters] guilty
of possession of a firearm by a prohibited person[,] after which
the trial court sentenced [Whiters] to a term of five to ten years[’]
imprisonment.

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PCRA Court Opinion, 8/11/22, at 2-3.

Whiters filed post-sentence motions, which the trial court denied on

December 12, 2014. Whiters filed a timely notice of appeal to this Court,

which affirmed his judgment of sentence on July 11, 2016. See

Commonwealth v. Whiters, 154 A.3d 849 (Pa. Super. 2016) (Table).

Whiters’ petition for allowance of appeal to the Supreme Court was denied on

February 6, 2019. See Commonwealth v. Whiters, 201 A.3d 727 (Pa.

2019) (Table).

On September 17, 2019, Whiters filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended petition. On June 21, 2021,

the Commonwealth filed a motion to dismiss. Whiters filed a counseled

“Supplement [sic] Amended Petition Under Post-Conviction Relief Act” on

August 23, 2021. On February 15, 2022, the PCRA court issued its

Pa.R.Crim.P. 907 notice of intent to dismiss and, on March 10, 2022, the PCRA

court denied relief. Whiters filed a timely notice of appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.

Whiters raises the following claims for our review:

1. Whether the court erred in not granting relief on the PCRA
petition alleging [t]rial [c]ounsel was ineffective.

2. Whether the [c]ourt erred in denying [Whiters’] PCRA petition
without an evidentiary hearing on the issues raised in the
amended PCRA petition.

Brief of Appellant, at 7 (reordered for ease of disposition).

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In reviewing the denial of PCRA relief, “we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and

citations omitted). The PCRA court’s credibility determinations are binding on

this Court when they are supported by the record; its legal conclusions,

however, are subject to de novo review. Commonwealth v. Chmiel, 30

A.3d 1111, 1127 (Pa. 2011).

Here, Whiters claims that his trial counsel was ineffective. To establish

a claim of counsel’s ineffectiveness, a petitioner must overcome the

presumption that counsel was effective by proving “(1) that the underlying

claim has merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors or omissions of counsel, there is

a reasonable probability that the outcome of the proceedings would have been

different.” Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super.

2011) (citation omitted). “The failure to prove any one of the three prongs

results in the failure of petitioner’s claim.” Id.

Whiters first asserts that trial counsel rendered ineffective assistance by

failing to preclude the Commonwealth from mentioning before the jury his

prior conviction for third-degree murder, which was the predicate offense

disqualifying him from possessing a firearm under section 6105. Specifically,

Whiters claims that, rather than allowing the Commonwealth to reference his

prior murder conviction to the jury, counsel should have “filed a motion in

limine to preclude mention of murder . . . or should have only entered into a

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stipulation that [Whiters] had a prior conviction for an [enumerated] offense.”1

Brief of Appellant, at 15 (unnecessary capitalization omitted). Whiters alleges

that, “[i]f trial counsel [had] not been ineffective, counsel for the

Commonwealth would have stated to the jury that [Whiters] was convicted of

one of the offenses without revealing to the jury which offense” was involved.

Id. at 16. Whiters claims that the mention of his specific prior conviction

prejudiced him. This claim is meritless.

We begin by noting that Whiters provides no citation to authority in

support of this claim, in violation of Pa.R.A.P. 2119(a).2 This omission is,

perhaps, attributable to the fact that controlling authority is in direct

contravention to his claim. In Commonwealth v. Jemison, 98 A.3d 1254

(Pa. 2014), our Supreme Court addressed, on direct appeal, a claim nearly

identical to that underlying Whiters’ ineffectiveness claim. There, the

appellant, also convicted under section 6105, argued that the Commonwealth

should “no longer be permitted to introduce the record of the disqualifying

criminal conviction when the defendant is willing to stipulate that he is within

the class of persons prohibited from possessing firearms.” Id. at 1257.

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1 Rather than convincing the Commonwealth to enter into a non-specific
stipulation that Whiters had a conviction for “an enumerated offense,” trial
counsel stipulated that Whiters had been convicted of third-degree murder.

2 “The argument shall be divided into as many parts as there are questions to
be argued; and shall have at the head of each part . . . the particular point
treated therein, followed by such discussion and citation to authorities
as are deemed pertinent.” Pa.R.A.P. 2119(a) (emphasis added).

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In rejecting the appellant’s claim, the Court found:

Our General Assembly took considerable care to delineate the
specific offenses that can support a conviction . . . under [section]
6105, and there is no question that the relevant specific
enumerated offense is an essential element of that crime. Given
the text of the Pennsylvania statute, we cannot conclude . . . that
the name of the prior offense . . . addressed no detail in the
definition of the prior-conviction element that would not have
been covered by the stipulation to an unspecified conviction.

Id. at 1261 (citation and quotation marks omitted). The Court further stated:

We are unable to conclude that, in a [section] 6105 . . .
case, a defendant suffers unfair prejudice merely by the
admission into evidence of his or her certified conviction of
a specific, identified, predicate offense, which has been
offered by the Commonwealth to prove the prior conviction
element of [section] 6105.

Any possibility of unfair prejudice is greatly mitigated by the use
of proper cautionary instructions to the jury, directing them to
consider the defendant’s prior offense only as evidence to
establish the prior conviction element of the [section] 6105
charge, not as evidence of the defendant’s bad character or
propensity to commit crime. . . . We reiterate that here, as in so
many other contexts, the jury is presumed to follow the court’s
instructions. See, e.g., Commonwealth v. Tedford, [] 960 A.2d
1, 37 ([Pa.] 2008) (recognizing that when evidence of a
defendant’s other crimes is admitted for a relevant purpose under
Rule 404(b), the defendant is entitled upon request to a limiting
jury instruction, which the law presumes the jury will follow).

Id. at 1262–63 (emphasis added).

Here, the trial court gave the jury the following instruction:

In this case, you have heard evidence that[,] in the past[,] the
defendant was convicted of the crime of third-degree murder.
This evidence is before you for a limited purpose only, and that is
to provide you with information which is an element of the crime
charged in this case, that crime being possession of a firearm by

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a prohibited person. I will explain all of the elements when we
reach that point in my instructions.

You must not consider this evidence of his prior conviction for
third-degree murder in any way other than for the purpose I have
just stated. You must not regard this evidence as tending to show
that the defendant is a person of bad character or criminal
tendencies from which you might be inclined to infer guilt in this
case.

N.T. Trial, 10/2/14, at 175-76.

In light of the foregoing, Whiters has not demonstrated that his

underlying claim is meritorious. Ousley, supra. Accordingly, he is entitled

to no relief.

Next, Whiters claims that trial counsel was ineffective for failing to

“properly present all the necessary facts regarding [the Commonwealth’s

Rule] 600 violation.” Brief of Appellant, at 19. Whiters argues that, during

the Rule 600 hearing, counsel for the Commonwealth misstated the period

during which Whiters was without an attorney. Whiters asserts that trial

counsel “never objected to this misstatement of the facts.” Id. at 20. Whiters

further argues:

Additionally, the Commonwealth failed to file writs to have
[Whiters] brought down during that time period. And the few that
were filed were incorrect. They were filed in someone else’s name
and sent to another facility. So[,] during that time frame,
[Whiters] was never bought down [due] to the Commonwealth’s
errors. Trial counsel never argued this.

The prosecutor then advised the court that [Whiters] was brought
down but that no courtrooms were available.

To compound the error, on each of the dates there was no writ
filed, the defense counsel requested continuances rather than let
the Commonwealth take the blame for the continuance.

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Id. Lastly, Whiters argues that a mix-up in courtrooms caused additional

delay. Whiters is entitled to no relief.

A Rule 600 motion requires the Commonwealth to establish that it

exercised due diligence in bringing a defendant to trial. See Commonwealth

v. Colon, 87 A.3d 352, 359 (Pa. Super. 2014) (noting “failure of the

Commonwealth to commence trial within 365 days from the filing of the

complaint constitutes a technical Rule 600 violation[, and] the Commonwealth

has the burden of demonstrating by a preponderance of the evidence that it

exercised due diligence”). Here, however, Whiters—on collateral review—

attempts to demonstrate that trial counsel was ineffective for failing to

properly pursue a Rule 600 claim. In this context, Whiters bears both the

burden of demonstrating that there was arguable merit to the proposed

motion and that he was prejudiced by trial counsel’s failure to pursue it. See

Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (“A PCRA

petitioner must exhibit a concerted effort to develop his ineffectiveness claim

and may not rely on boilerplate allegations of ineffectiveness.”).

Here, aside from pointing out a minor misstatement by counsel for the

Commonwealth regarding the period of time Whiters was without counsel

(amounting to a discrepancy of only 29 days), baldly alleging that “the

Commonwealth failed to file writs to have [Whiters] brought down,”3 and citing

____________________________________________

3The Commonwealth notes in its brief that there were 279 days between when
Whiters was tried and the final adjusted run date, and that there were three
(Footnote Continued Next Page)

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a mix-up in courtrooms (which Whiters does not argue was attributable to the

Commonwealth4), Whiters fails to state the precise reasons he believes, but

for trial counsel’s ineffectiveness, his Rule 600 motion would have been

meritorious. Whiters has not alleged that the Commonwealth failed to

exercise due diligence, nor does he engage in any kind of Rule 600 analysis

detailing specific periods of time he believes should be—but were not—

attributed to the Commonwealth. Accordingly, Whiters failed to demonstrate

even arguable merit to the claim underlying his allegation of ineffective

assistance. See Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005)

(“The burden of proving ineffectiveness rests with Appellant.”). He is,

therefore, entitled to no relief.

Finally, Whiters claims that the PCRA court erred in denying his petition

without a hearing. A PCRA petitioner is not entitled to an evidentiary hearing

as a matter of right. Commonwealth v. Postie, 200 A.3d 1015, 1022 (Pa.

Super. 2018). The PCRA court may forgo a hearing if there is no genuine

issue concerning any material fact, the petitioner is not entitled to PCRA relief,

and no purpose would be served by further proceedings. Pa.R.Crim.P. 907(1);
____________________________________________

occasions in which a writ was prepared and defendant was not brought down,
causing a total delay of 236 days. Thus, the Commonwealth asserts, even if
the Commonwealth had incorrectly prepared all these writs, Whiters was still
timely tried. See Brief of Commonwealth, at 17.

4 See Commonwealth v. Harth, 252 A.3d 600, 618 (Pa. 2021) (delay
attributable to court may be excludable from Rule 600 calculation where
Commonwealth meets burden of proving due diligence)

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Postie, 200 A.3d at 1022. To be entitled to an evidentiary hearing, defendant

must offer to prove sufficient facts upon which a reviewing court can conclude

that trial counsel may have been ineffective. Commonwealth v. Priovolos,

715 A.2d 420, 422 (Pa. Super. 1998).

As detailed above, Whiters articulated no genuine issue of material fact

that would warrant an evidentiary hearing on either of his ineffectiveness

claims. Accordingly, the PCRA court did not err in dismissing his petition

without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2023

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