Com. v. Murray, K.

Court: Superior Court of Pennsylvania
Date filed: 2019-07-09
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J-S19039-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
         v.                              :
                                         :
KAHLIL MURRAY,                           :
                                         :
                  Appellant              :     No. 1225 EDA 2018

                   Appeal from the PCRA Order March 23, 2018
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005584-2008

BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JULY 09, 2019

     Kahlil Murray (Appellant) appeals from the March 23, 2018 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     A prior panel of this Court summarized the factual and procedural

background of this case as follows.

            On May 10, 2007, Appellant and two co-conspirators broke
     into a home, restrained two victims, and terrorized them with an
     electric saw for approximately two hours in an attempt to obtain
     drugs and money from them. Police apprehended Appellant and
     his co-conspirators a short time later after a police chase. …

                    On September 15, 2008, a jury convicted
              [Appellant] on the charges of robbery (victim,
              Donovan Henry), robbery (victim, Angela Watson),
              burglary, conspiracy to commit robbery, firearms
              carried without a license and possessing an
              instrument of crime. … Pursuant to a pre-trial
              agreement with counsel, [the trial court], after the
              jury’s verdict on firearms carried without a license,


* Retired Senior Judge assigned to the Superior Court.
J-S19039-19


             entered a verdict of guilty for persons prohibited
             from possessing a firearm. On December 15, 2008,
             [the trial court] sentenced [Appellant] to an
             aggregate sentence of [20] to [40] years [of]
             incarceration followed by ten years [of] probation.
             On December 18, 2008, [Appellant] filed a notice of
             appeal to [this Court]. On February 23, 2010 [this
             Court] remanded the matter for resentencing at [the
             trial court’s] request. On June 30, 2010, [the trial
             court] imposed new sentences for [Appellant’s]
             burglary and conspiracy convictions as well as one of
             his robbery convictions. [Appellant’s] sentence for
             the second robbery conviction remained in place.
             [Appellant received an aggregate sentence of 18 to
             36 years of incarceration followed by ten years of
             probation.] On July 2, 2010 [Appellant] filed a
             motion for reconsideration of his sentence. On July
             19, 2010 [the trial court] denied the motion without
             a hearing.

Commonwealth v. Murray, 34 A.3d 219 (Pa. Super. 2011) (unpublished

memorandum at 2) (unnecessary capitalization, parenthetical numbers, and

citations omitted). On appeal, this Court affirmed, and our Supreme Court

denied Appellant’s petition for allowance of appeal.        Id. (unpublished

memorandum at 1), appeal denied, 40 A.3d 1235 (Pa. 2012).

      On November 13, 2012, Appellant pro se filed the instant PCRA

petition.   Counsel was appointed and filed an amended petition on August

14, 2014.    Subsequently, new counsel was appointed, and counsel filed a

supplemental petition on December 17, 2015, adopting the claims raised in

the amended petition and raising new claims. Altogether, Appellant raised

four claims of ineffective assistance of trial counsel and one claim of after-

discovered evidence related to a letter about co-defendant Shariyq Orr.


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      On April 28, 2017, the PCRA court held a hearing on two of the

ineffective assistance of counsel claims: (1) trial counsel’s failure to

investigate the getaway vehicle, and (2) trial counsel’s failure to call alibi

witnesses.   On June 3, 2017, the PCRA court issued notice, pursuant to

Pa.R.Crim.P. 907,1 of its intent to dismiss Appellant’s PCRA petition.

Appellant responded on July 20, 2017,2 asserting a new after-discovered

claim based on co-defendant Orr’s affidavit claiming that Appellant was not

involved in the robbery. On January 25, 2018, the Commonwealth filed a

supplemental motion to dismiss Appellant’s PCRA claim relating to Orr’s

affidavit. The PCRA court denied Appellant’s petition on March 23, 2018.




1  Rule 907 only applies to dismissal of claims without a hearing; so such
notice was unnecessary for the claims upon which the PCRA court granted a
hearing. Nonetheless, we note with displeasure that the PCRA court failed to
state in the notice the reasons for dismissal of those claims it intended to
dismiss without a hearing. Pa.R.Crim.P. 907(1) (requiring the PCRA court to
“state in the notice the reasons for the dismissal”). However, Appellant
replied to the notice and does not complain on appeal that he was prejudiced
by the deficient notice. Therefore we do not address this deficiency further.
See Commonwealth v. Weimer, 167 A.3d 78, 86 (Pa. Super. 2017)
(finding no merit to claim that defective Rule 907 notice denied Weimer the
right to file an amended petition where PCRA court accepted numerous
filings, responses, and objections to the Rule 907 notice); Commonwealth
v. Zeigler, 148 A.3d 849, 851 n.2 (Pa. Super. 2016) (finding that because
Zeigler failed to raise issue of PCRA court’s noncompliance with Rule 907 on
appeal, he waived any defect in the notice).

2  This response was untimely filed.      See Pa.R.Crim.P. 907(1) (“The
defendant may respond to the proposed dismissal within 20 days of the date
of the notice.”); Rule 907 Notice, 6/23/2017 (“If[] you choose to respond,
your response is due within twenty calendar days of the above date.”).

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        This timely-filed appeal followed.3 On appeal, Appellant sets forth four

issues for our review.

        I.     Did the PCRA court err in denying [Appellant’s] request for
               a second evidentiary hearing, and subsequently dismissing
               [Appellant’s] petition for post-conviction relief, despite new
               evidence that came to light that would have changed the
               outcome of the trial, namely an exculpatory affidavit
               provided by a co-defendant? More specifically, should the
               PCRA court have granted an evidentiary hearing regarding
               the sworn affidavit of co-defendant [] Orr, where [] Orr
               states [Appellant] did not participate in the crime, as
               attached to [Appellant’s] reply to the 907 notice?

        II.    Did trial counsel render ineffective assistance of counsel
               due to his failure to investigate [Appellant’s] alleged
               possession of the “getaway” vehicle van despite
               [Appellant’s] request?       Further, was prior counsel
               constitutionally ineffective for failing to obtain a traffic
               citation showing another man was driving [that] vehicle in
               the days leading up to the robbery?

        III.   Did trial counsel render ineffective assistance of counsel
               due to his failure to file a motion to suppress the photo
               array on the basis that all of the photographs in the array
               were dated identically with the exception of [Appellant’s]
               photograph?

        IV.    Did trial counsel render ineffective assistance of counsel
               due to his failure to call Yasmin Murray and Edward Depiso
               as alibi witnesses?

Appellant’s Brief at 4 (reorganized for ease of disposition).

        We begin with Appellant’s claim that the PCRA court erred in failing to

grant a second evidentiary hearing from his response to the Rule 907 notice

raising an after-discovered evidence claim based on co-defendant Orr’s

affidavit. Appellant’s Brief at 23-25.

3   Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

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      Preliminarily, Appellant did not mention an affidavit by Orr in his

petition, but he did raise a similar claim regarding Orr based upon a letter

Appellant received from Omar McClarin, who was in prison with Orr. In the

letter, McClarin stated that Orr told him Appellant was not involved in the

robbery.   Appellant did not assert that the PCRA court erred in dismissing

the claim regarding the McClarin letter in his Pa.R.A.P. 1925(b) statement,

or argue the same in his brief on appeal. Rather, Appellant has only raised

the issue of whether the PCRA court erred in dismissing the specific claim

regarding Orr’s affidavit raised in his Rule 907 response.      Although the

issues are related, one relates to the after-discovered evidence of McClarin’s

letter, and one relates to the after-discovered evidence of Orr’s affidavit.

Accordingly, Appellant’s initial claim presenting after-discovered evidence of

McClarin’s letter is waived.   See Commonwealth v. Lord, 719 A.2d 306,

309 (Pa. 1998) (“Any issues not raised in a 1925(b) statement will be

deemed waived.”).

      Insofar as Appellant attempted to raise a new claim of after-discovered

evidence relating to Orr’s affidavit in his response to the Rule 907 notice,

this was improper.

      The purpose of a Rule 907 pre-dismissal notice is to allow a
      petitioner an opportunity to seek leave to amend his petition and
      correct any material defects, the ultimate goal being to permit
      merits review by the PCRA court of potentially arguable claims.
      The response to the Rule 907 notice is an opportunity for a
      petitioner and/or his counsel to object to the dismissal and alert
      the PCRA court of a perceived error, permitting the court to
      discern the potential for amendment. The response is also the

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      opportunity for the petitioner to object to counsel’s effectiveness
      at the PCRA level.

Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa. Super. 2015)

(citations and quotation marks omitted).       “This does not mean that a

defendant may raise entirely new claims that he could have presented prior

to his response to the notice of intent to dismiss.”      Commonwealth v.

Rykard, 55 A.3d 1177, 1189 n.8 (Pa. Super. 2012). Rather, “the response

is not itself a petition and the law still requires leave of court to submit an

amended petition. See Pa.R.Crim.P. 905(A).” Id. at 1189.

      The Rules of Criminal Procedure contemplate that amendments
      to pending PCRA petitions are to be “freely allowed to achieve
      substantial justice,” Pa.R.Crim.P. 905(A), but Rule 905
      amendments are not “self-authorizing” such that a petitioner
      may simply “amend” a pending petition with a supplemental
      pleading. Rather, the Rule explicitly states that amendment is
      permitted only by direction or leave of the PCRA court.

Commonwealth v. Mason, 130 A.3d 601, 621 n.19 (Pa. 2015) (some

citations and quotation marks omitted).

      Here, the PCRA court issued notice of its intent to dismiss Appellant’s

PCRA petition on June 3, 2017. This notice did not direct or permit Appellant

to amend his PCRA petition to include new claims. Appellant responded to

the Rule 907 notice on July 20, 2017, past the 20-day deadline.             See

Pa.R.Crim.P. 907(1). According to Appellant’s response, Appellant received

the after-discovered evidence of Orr’s affidavit on May 31, 2017, which was

prior to the PCRA court’s Rule 907 notice. Reply to 907, 7/20/2017, at 1

(unnumbered).     Nonetheless, at no point from May 31, 2017, when

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Appellant learned of Orr’s affidavit, until March 23, 2018, when the PCRA

court dismissed Appellant’s petition, did Appellant seek permission to amend

his petition to include a claim of after-discovered evidence relating to Orr’s

affidavit.   As such, the PCRA court was under no obligation to review the

merits of this new claim, which was improperly raised, without leave of court

to amend his petition, in an untimely Rule 907 response. See Mason, 130

A.3d at 621 n.19; Rykard, 55 A.3d at 1189 & n.8. Accordingly, Appellant is

not entitled to relief on this claim.

      We now address Appellant’s ineffective assistance of counsel claims.

      This Court analyzes PCRA appeals in the light most favorable to
      the prevailing party at the PCRA level. Our review is limited to
      the findings of the PCRA court and the evidence of record and we
      do not disturb a PCRA court’s ruling if it is supported by evidence
      of record and is free of legal error. Similarly, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.
      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary. Finally, we
      may affirm a PCRA court’s decision on any grounds if the record
      supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

      “To establish ineffectiveness of counsel, a PCRA petitioner must show

the underlying claim has arguable merit, counsel’s actions lacked any

reasonable     basis,   and   counsel’s    actions   prejudiced   the   petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations

omitted). “A failure to satisfy any prong of the ineffectiveness test requires

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rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009).

      When raising a claim that counsel was ineffective for failing to call a

potential witness, a petitioner must establish that

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to
      testify for the defense; and (5) the absence of the testimony of
      the witness was so prejudicial as to have denied the defendant a
      fair trial.

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (citation

omitted).

      Because some of Appellant’s PCRA claims were dismissed without a

hearing, we also keep the following in mind.

      The PCRA court has discretion to dismiss a petition without a
      hearing when the court is satisfied that there are no genuine
      issues concerning any material fact, the petitioner is not entitled
      to post-conviction collateral relief, and no legitimate purpose
      would be served by further proceedings. To obtain a reversal of
      a PCRA court’s decision to dismiss a petition without a hearing,
      an appellant must show that he or she raised a genuine issue of
      fact which, if resolved in his favor, would have entitled him to
      relief, or that the court otherwise abused its discretion in
      denying a hearing.

Commonwealth v. Holt, 175 A.3d 1014, 1017-18 (Pa. Super. 2017)

(citations omitted).

      Following a review of the record and the briefs for the parties, we

conclude that the opinion of the Honorable Denis P. Cohen thoroughly

addresses Appellant’s issues regarding the ineffective assistance of trial


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counsel and applies the correct law to facts that are supported by the

record.   We discern no error or abuse of discretion on those issues.

Therefore, we adopt the PCRA court’s opinion of August 9, 2018, as our own

with respect to Appellant’s ineffective assistance of counsel issues.4   PCRA

Court Opinion, 8/9/2018, at 11-19.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/19




4 The parties shall attach a copy of the PCRA court’s August 9, 2018 opinion
to this memorandum in the event of further proceedings.



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0060_Opinion
                                                                                                             Circulated 06/20/2019 12:54 PM




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