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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HAROLD V. HOSKINS, :
:
Appellant : No. 1643 MDA 2016
Appeal from the PCRA Order June 6, 2014
in the Court of Common Pleas of Lycoming County,
Criminal Division, at No(s): CP-41-CR-0001185-2005
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 21, 2017
Harold V. Hoskins (Appellant) appeals from the June 6, 2014 order
that dismissed his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Also before us are two motions to
remand filed by Appellant. We deny Appellant’s motions and affirm the
order dismissing his petition.
On Appellant’s direct appeal, this Court summarized the underlying
facts of the case as follows.
On July 8, 2005, Appellant was drinking and playing poker at the
home of James Drummond and his paramour, Linda Bower,
along with Donnie Evans. Appellant left the game after he
became annoyed when he lost all of his money and no one would
give him any more. He returned to the residence, waving a gun
and stating it was not an f---ing joke. Appellant pointed the gun
at Evans’ head and pulled the trigger twice; no shots were fired,
but the sound of the gun mechanism clicks [were] heard. Bower
later testified that Appellant took a bullet from the .38 revolver
*Retired Senior Judge assigned to the Superior Court.
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and laid it on the table, then immediately put the bullet back into
the gun, and pulled the trigger while Evans and Drummond were
trying to take it from him. Drummond later testified that
Appellant pulled the trigger a third time while the gun was
pointed at his, Drummond’s, stomach. Appellant pulled the
trigger a fourth time in an unknown direction, Evans and
Drummond wrestled the gun away, and police arrived.
Appellant was charged with various offenses, including two
counts of attempted homicide, each against Evans and
Drummond. A jury trial was conducted on February 2 and 5,
2007, at which Appellant testified in his defense. He was found
guilty of all charges.3 On April 7, 2011, the court imposed an
aggregate sentence of twenty-seven to sixty years’
imprisonment.
______
3 Following trial, Appellant absconded and a bench warrant
was issued. He was apprehended four years later on
March 23, 2011. Because the trial judge had retired
during the interim, sentencing was assigned to another
judge.
Commonwealth v. Hoskins, 48 A.3d 485 (Pa. Super. 2012) (unpublished
memorandum at 1-3) (citations, quotation marks, and some footnotes
omitted). This Court affirmed Appellant’s judgment of sentence on April 25,
2012, id., and our Supreme Court denied Appellant’s petition for allowance
of appeal on September 19, 2012. Commonwealth v. Hoskins, 53 A.3d
756 (Pa. 2012).
Appellant pro se timely filed a PCRA petition on November 21, 2012.
Therein, Appellant “alleged after discovered evidence; specifically that
Donnie Evans and James Drummond had now changed their testimony that
[Appellant] pointed a gun at them and pulled the trigger.” PCRA Court
Opinion, 3/21/2014, at 2. The PCRA court appointed Jerry Lynch, Esquire,
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as Appellant’s counsel; counsel filed an amended petition on July 9, 2013;
and the PCRA court scheduled a hearing. Before the hearing, on November
19, 2013, Attorney Lynch filed a petition 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).
Therein, Attorney Lynch represented as follows.
[Appellant’s] PCRA [petition] asserted that [Appellant] is
entitled to relief in light of after-discovered evidence. The
evidence [Appellant] relies upon is two [] notarized affidavits.
[Appellant] has presented that the affiants, James Drummond
and Donnie Evans, have recanted their prior testimony.
Donnie Evans, in his affidavit, states that he would be
willing to testify that “at no time did I see [Appellant] point the
gun in anyone’s direction.” This is actually not a recantation, Mr.
Evans did testify to that at trial.
QUESTION: Okay. And I believe your testimony
was, you don’t recall him pointing that gun at
anyone in that room?
ANSWER: That’s correct.
N.T., [2/2/2007, at 99]. As such, counsel does not believe that
Mr. Evan[s’s] testimony would be any more helpful to
[Appellant’s] case now than it was at trial.
Counsel contacted James Drummond after several
attempts. Mr. Drummond has explained that since the trial he
began to suffer from diabetes and it [a]ffects his memory. When
asked why he would have recanted his prior testimony, he said,
“He couldn’t remember, maybe that’s why” and that “He didn’t
remember anything about the event or signing the affidavit.” In
light of Mr. Drummond’s failing memory concerning the matter
and the inherent unreliability of recantation testimony[,] counsel
does not believe that Mr. Drummond’s testimony would have
changed the outcome of the trial had it been introduced.
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Turner/Finley “No Merit” Letter, 11/19/2013, at 2-3 (pages unnumbered).
Counsel’s Turner/Finley letter also noted that Appellant wished to
raise a new issue “concerning whether a .38 handgun was capable of firing a
.32 caliber bullet.” Id. at 3. The PCRA court ordered counsel to file an
amended petition raising the new issue or to file another Turner/Finley
letter. Shortly thereafter, Appellant pro se sent a letter to the PCRA court
noting four complaints about the way that his trial counsel dealt with issues
related to the handgun. By order of December 30, 2013, the PCRA court
filed Appellant’s letter and directed a copy to be forwarded to Attorney Lynch
pursuant to Pa.R.Crim.P. 576(A)(4).
On January 13, 2014, counsel filed a new petition to withdraw, opining
therein that trial counsel was not ineffective in failing to pursue the
questions of the Commonwealth’s firearms witness that Appellant claims he
should have asked. Petition to Withdraw, 1/13/2014, at ¶ 6. By opinion and
order of March 21, 2014, the PCRA court thoroughly examined the new
firearms issue and agreed with Attorney Lynch that it lacked merit and no
hearing was necessary. Accordingly, the PCRA court granted counsel’s
petition to withdraw and issued notice pursuant to Pa.R.Crim.P. 907 of its
intent to dismiss Appellant’s petition without a hearing. Appellant responded
to the notice, reiterating both his original claims regarding the witnesses’
recantations of their trial testimony and his claims regarding trial counsel’s
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questioning about the handgun. Reply to Notice to Dismiss, 4/7/2014, at 1-
2.1 The PCRA court, noting the lack of new issues in Appellant’s response,
dismissed the petition by order filed on June 6, 2014.
Appellant timely filed a notice of appeal on June 26, 2014. The PCRA
court ordered Appellant to file a concise statement of errors raised on
appeal, and Appellant timely complied on July 17, 2014, listing the same
issues raised in his response to the 907 notice.
No further activity appears on the docket until June 8, 2015, when the
clerk of courts filed an order of our Supreme Court denying a petition for
writ of mandamus that Appellant filed in that court seeking to compel the
PCRA court to forward his notice of appeal to this Court. Another lengthy
gap is followed by an order of September 30, 2016, directing the clerk of
courts to docket the notice of appeal as having been filed on June 26, 2014.
By order of November 7, 2016, the PCRA court adopted its March 21, 2014
order as its opinion.
1 Appellant’s response to the 907 notice is contained in the certified record
but is not listed on the docket or time-stamped with a filing date. As it is
dated April 7, 2014, which is within 20 days of the issuance of the 907
notice, we see no reason not to deem it timely-filed pursuant to the prisoner
mailbox rule. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)
(explaining documents filed by incarcerated individuals acting pro se are
deemed to have been filed on the day that they were deposited with the
prison authorities or placed in the prison mailbox); Commonwealth v.
Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (holding plausible timeliness
under the rule may be accepted if not challenged by the opposing party).
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Proceeding pro se in this Court, Appellant sought and was granted an
extension of time to file his brief. On March 2, 2017, private counsel
entered his appearance on Appellant’s behalf and requested, and was
granted, another extension of time to file a brief. Instead, on April 24,
2017, counsel filed a motion for remand, seeking to return to the PCRA court
to raise a new issue: that PCRA counsel was ineffective in failing to argue
that trial counsel was ineffective for not challenging the discretionary
aspects of Appellant’s sentence. Motion for Remand, 4/24/2017, at 7 (pages
unnumbered). On May 11, 2017, counsel filed a supplemental motion,
alleging additional hearsay about what witnesses would say in support of the
new claim. Supplemental Motion for Remand, 5/11/2017, at 1-2 (pages
unnumbered). By order of May 12, 2017, this Court deferred the motions to
the panel assigned for disposition of the appeal and ordered a new briefing
schedule. After receiving two extensions, counsel filed a brief in which he
abandoned all of the claims preserved in Appellant’s 1925(b) statement and
instead argued his remand motions. Appellant’s Brief at 15-36. The
Commonwealth filed its brief, and the appeal is ready for disposition.
The claim of ineffective assistance of PCRA counsel Appellant wishes to
litigate on remand was never raised in the PCRA court. He did not raise it in
response to either of Attorney Lynch’s Turner/Finley letters, nor in
response to the PCRA court’s 907 notice. Based upon this Court’s precedent,
we agree with the Commonwealth that the claim cannot be litigated in any
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court as part of the pending PCRA petition; it must be raised in a serial
petition.
In Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012), Ford
first raised a claim of his PCRA counsel’s ineffectiveness in his 1925(b)
statement. The claim was based upon the record, did not require additional
fact-finding, and was addressed by the PCRA court in its opinion.
Nonetheless, this Court, after a review of precedential decisions of our
Supreme Court, declined to address the issue on the basis that “a majority
of the Supreme Court agrees 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.” Id. at 1200. This Court expressly held that “claims
of PCRA counsel ineffectiveness cannot be raised for the first time after a
notice of appeal has been taken from the underlying PCRA matter.” Id. at
1201. Appellant’s brief fails to acknowledge Ford at all, let alone explain
why we are not bound by its holding that is directly contrary to his request
to remand to litigate a claim of PCRA counsel’s ineffectiveness that was
raised for the first time after he appealed the dismissal of the underlying
PCRA petition.
Appellant’s position was also rejected in Commonwealth v. Henkel,
90 A.3d 16 (Pa. Super. 2014) (en banc), in which this Court sitting en banc
reaffirmed Ford’s holding and denied Henkel’s petition to remand to develop
in the PCRA court his claims of PCRA counsel’s ineffectiveness that were
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raised for the first time after the appeal was taken. This Court was
compelled to do so based upon controlling precedent, although “cognizant
that failing to address PCRA counsel ineffectiveness claims raised for the first
time on appeal renders any effective enforcement of the rule-based right to
effective PCRA counsel difficult at the state level.” Id. at 29. In a footnote,
this Court offered some possible solutions to the problem, such as instituting
a post-PCRA motion practice similar to post-sentence motions. Id. at 29
n.4. Appellant in his brief suggests another solution: remand for the filing of
a supplemental petition. Appellant’s Brief at 18. However, as noted above,
the Henkel Court denied the petition for remand that was filed in that case
rather than accepting remand as a viable solution.2
In Commonwealth v. Smith, 121 A.3d 1049 (Pa. Super. 2015), a
case cited by neither Appellant nor the Commonwealth, this Court explicitly
2 The Commonwealth aptly noted that “to permit remand would raise a
series of other issues.” Commonwealth’s Brief at 7.
For example, how would the [C]ourt determine whether remand
to raise new issues is appropriate? Would the [C]ourt remand
every case where new counsel or a pro se defendant alleged
ineffectiveness of PCRA counsel? Would the [C]ourt require the
parties to brief the new issue to determine whether the claim
was substantial or not? If the parties briefed the issues would
the [C]ourt consider facts not of record to make the
determination of whether there is a substantial claim presented?
Id. If a new procedure is instituted to address this situation, it must be
done thoughtfully and deliberately rather than on an ad hoc basis. As noted
in Henkel, this Court “is without authority to promulgate procedural rules.”
90 A.3d at 29 n.4. That power lies with our Supreme Court.
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rejected Smith’s argument “that this Court must remand his case to the
PCRA court with instructions to review and adjudicate [Smith’s] claims of
PCRA counsel’s ineffectiveness which [Smith] raised for the first time in his
Rule 1925(b) statement.” Id. at 1053. The Court explained that, as the
nature of PCRA proceedings are more civil than criminal, the petitioner has
the burden to move the case forward, to plead and prove claims, and to
preserve those claims. Id. at 1054-55. Because Smith did not raise his
claim of PCRA counsel’s ineffectiveness in response to the PCRA court’s Rule
907 notice, he waived his right “to complain about PCRA counsel’s
stewardship” once he filed his notice of appeal. Id. at 1055.
In the instant case, Appellant did respond to both PCRA counsel’s
Turner/Finley letter and to the PCRA court’s Rule 907 notice. However, in
neither response, and at no time prior to filing his notice of appeal, did he
make the claim that he now seeks to pursue: that PCRA counsel should have
claimed that trial counsel was ineffective in failing to challenge the
discretionary aspects of Appellant’s sentence. Under Smith, Appellant’s
request for remand must be denied.
Appellant attempts to circumvent these principles by invoking an
exception recognized in Henkel. In that case, this Court expressly indicated
that its decision did not impact cases in which the PCRA court failed to
appoint counsel as required by the rules, or in which “the appointment of
counsel is a mere formality and counsel fails to meaningfully represent his
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client during critical stages of the PCRA proceedings, including failing to file
either an amended petition or a Turner/Finley no-merit letter.” Henkel,
90 A.3d at 30 n.6. Appellant argues that he is entitled to proceed with his
claim about PCRA counsel because “the way [Attorney Lynch] functioned
constructively denied [Appellant] the meaningful participation in the PCRA
proceedings he was due….” Appellant’s Brief at 18-19.
This argument is not supported by the record. Attorney Lynch filed an
amended PCRA petition; filed a Turner/Finley letter explaining why those
issues lacked merit and raising a new issue Appellant wished to raise; and
filed another Turner/Finley letter explaining why the additional issue lacked
merit. Attorney Lynch’s performance was not in the same realm as the
nonfeasance of counsel in cases holding that the PCRA petitioner was
effectively denied counsel. See, e.g., Commonwealth v. Willis, 29 A.3d
393, 397 (Pa. Super. 2011) (“Attorney Elgart petitioned to withdraw prior to
each of [Willis’s] PCRA hearings, yet the court chose not to rule on Attorney
Elgart’s petitions before conducting those proceedings. Consequently,
Attorney Elgart was duty-bound to act as [Willis’s] counsel; however, the
transcripts of the PCRA hearings are replete with evidence that he was not
advocating on [Willis’s] behalf. Instead, it appears that he was attempting
to prove that [Willis’s] claims were meritless, presumably to persuade the
court to grant his request to withdraw.”); Commonwealth v. Wiley, 966
A.2d 1153, 1158–59 (Pa. Super. 2009) (“The condition of the record and
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accompanying procedural history of this case are deplorable. It appears,
upon a review of the certified record provided to this Court, that [Wiley] was
chronically unrepresented by appointed counsel, there was never an
amended counseled PCRA petition filed, and [Wiley], apparently forced to act
on his own, took appeals from orders that were unappealable and submitted
defective briefs and other filings that were all handwritten and all essentially
incomprehensible. … Nevertheless, at no point was a counseled PCRA
petition ever filed.”).
Our Supreme Court has recognized that, “[w]hile difficult, the filing of
a subsequent timely PCRA petition is possible, and in situations where an
exception pursuant to § 9545(b)(1)(i-iii) can be established a second
petition filed beyond the one-year time bar may be pursued.”
Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011). If
Appellant wishes to pursue his claim concerning Attorney Lynch’s alleged
ineffectiveness, that is the mechanism he must use unless and until our
Supreme Court provides otherwise.
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Motions for remand denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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Com. v. Hoskins, H.
Combined Opinion