J-S55004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY JERMAINE GARDNER
Appellant No. 759 EDA 2015
Appeal from the PCRA Order February 9, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003279-2006
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED October 5, 2016
Terry Jermaine Gardner appeals from the order, entered in the Court
of Common Pleas of Chester County, which dismissed his petition filed
pursuant to the Post Conviction Relief Act (PCRA).1 After our review, we
affirm.
Following a jury trial, Gardner was convicted of first-degree murder
and related offenses based upon his participation in a conspiracy to kill the
victim in retaliation for another killing. Gardner fired the fatal gunshot. On
October 27, 2010, the trial court imposed an aggregate sentence of life
imprisonment without the possibility of parole.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
J-S55004-16
Gardner filed a direct appeal of his judgment of sentence, which was
affirmed by this Court on October 26, 2011. See Commonwealth v.
Gardner, 37 A.3d 1245 (Pa. Super. 2011) (unpublished memorandum).
Gardner filed a petition for allowance of appeal in the Pennsylvania Supreme
Court, which was denied on October 24, 2012. See Commonwealth v.
Gardner, 55 A.3d 522 (Pa. 2012). On July 8, 2013, Gardner filed a pro se
PCRA petition, and counsel was appointed to represent him. Counsel filed a
petition to withdraw from the case pursuant to Turner/Finley.2 The PCRA
court issued a notice of intent to dismiss the PCRA petition pursuant to
Pa.R.Crim.P. 907 and permitted counsel to withdraw on December 29, 2014.
Gardner filed a “Motion to Amend the PCRA” on January 23, 2015, in which
he took issue with PCRA counsel’s decision to withdraw. The court dismissed
the PCRA petition by an order dated February 9, 2015, which was mailed to
Gardner on February 10, 2015.
Gardner filed a timely pro se notice of appeal on March 12, 2015.3 The
court ordered Gardner to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Gardner filed a motion requesting
____________________________________________
2
Commonwealth v. Turner, 544 A.2d 917 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
3
The 30-day period to file a notice of appeal runs from the entry of the
order from which the appeal is taken pursuant to Pa.R.A.P. 903(a), and the
date the order is entered is the day the clerk of court mails the order to the
parties. See Pa.R.A.P. 108(a)(1).
-2-
J-S55004-16
additional time to file the statement. The court granted the motion and
extended the deadline by 45 days, until May 30, 2015. Gardner did not
comply but filed an untimely statement entitled “Appellant’s Supplemental
Concise Statement of Matters Complained of on Appeal,” despite not filing an
original statement.4
Gardner raises the following issues, verbatim:
1. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective for
failing to admit prior inconsistent statements of Rahlik Gore,
Robert Hamrick, Steven Pittman, and Richard Legree[,] Jr.
as substantive evidence to prove the truth of the matters
asserted therein? Claiming that these materials are not part
of the record and [Gardner] should have provided and filed
it of record.
2. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective when
failing to object or otherwise protect [Gardner’s] rights by
permitting the Commonwealth to introduce 2 firearms at
[Gardner’s] trial which [Gardner] was not charged with
illegally possessing or was alleged to have utilized the
aforementioned guns to allegedly commit the homicide that
was the subject of the instant prosecution? Claiming that
the issue lacks the specificity required for relief under the
Post-Conviction Relief Act.
____________________________________________
4
The untimely statement was filed on June 15, 2015. However, Gardner
had dated the statement June 10, 2015. Accordingly, June 10, 2015, is
considered to be the date of filing pursuant to the prisoner mailbox rule.
See Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998).
Nevertheless, the statement was filed 11 days beyond the extended deadline
provided by the court.
-3-
J-S55004-16
3. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective when
failing to properly advise [Gardner] of his right to testify
because of his criminal record which did not include crimen
falsi. Counsel advised [Gardner] not to testify because of
his criminal record when [Gardner] wanted to testify on his
own behalf. [Gardner] declined to testify only because his
attorney told him not to? Claiming that trial counsel was
not ineffective because [Gardner] made a voluntary decision
not to testify on his own behalf.
4. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective when
failing to object or otherwise protect [Gardner’s] rights
where [Gardner] requested accomplice and corrupt source
instruction be given to jury and said instruction was not
given? Claiming trial testimony does not evidence the
Commonwealth [witnesses] accomplices.
5. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective when
failing to object or otherwise protect [Gardner’s] rights by
not challenging a sufficiency of the evidence of [Gardner’s]
first degree murder and conspiracy charges? Claiming that
this claim is waived under PCRA and should have been
raised on direct appeal.
6. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective when
failing to conduct an adequate legal and independent factual
investigation that led to the Commonwealth introducing
evidence from a series of events separate from [Gardner’s]
in which defendant in that case was [acquitted] and
prejudiced [Gardner]? Claiming that failure to cite to the
record left [Gardner’s] claim undeveloped.
7. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective for
failing to investigate facts relating to the time and alleged
location of the alleged homicide of Brian Brown and
-4-
J-S55004-16
interview [Gardner’s] available witnesses and a possible alibi
defense? Claiming that this issue is devoid of merit.
8. Whether the PCRA court abused its discretion and
committed reversible error when dismissing [Gardner’s] pro
se PCRA petition without a hearing rather than directing
[Gardner] to file an amended PCRA to correct the defective
PCRA and give [Gardner] a legitimate [opportunity] to
present his [meritorious] claims?
9. Whether [Gardner’s] newly after[-]discover[ed] evidence of
trial counsel’s ineffectiveness due to conflict of interest and
violation of professional conduct [warrants] remand?
10. Whether the PCRA court abused its discretion and
committed reversible error when determining that
[Gardner’s] claim that: Trial counsel was ineffective for
failing to object or otherwise protect [Gardner’s] rights by
not challenging prosecutor[’]s misconduct soliciting false
testimony and allowing it to go uncorrected? Claiming that
issue should have been raised on direct appeal so issue is
waived.
Brief for Appellant, at 5-6.
Our standard and scope of review regarding the denial of a PCRA
petition is well-settled. We review the PCRA court’s findings of fact to
determine whether they are supported by the record, and review its
conclusions of law to determine whether they are free from legal error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level. Id.
Instantly, the PCRA court found all of Gardner’s issues on appeal to be
waived for failure to file a timely statement pursuant to Rule 1925(b).
Where a concise statement is untimely filed, it is “within the trial court’s
-5-
J-S55004-16
discretion to find waiver[.]” Commonwealth v. Smith, 854 A.2d 597, 600
(Pa. Super. 2004). Additionally, the fact that Gardner is proceeding pro se
on appeal does not excuse him from following procedural rules. See
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003) (“[A] pro
se litigant must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or dismiss an appeal
if an appellant fails to conform with the requirements set forth in the
Pennsylvania Rules of Appellate Procedure.” (citations omitted)).
Accordingly, because the PCRA court acted within its discretion in finding
waiver of all claims, we discern no error on the part of the court.5
Order affirmed.
____________________________________________
5
All of Gardner’s claims on appeal involve ineffective assistance of counsel,
with the exception of the claim that the trial court erred by not allowing him
to amend his PCRA petition, which is clearly within the discretion of the
court. See Commonwealth v. Williams, 828 A.2d 981, 988 (Pa. 2003)
(PCRA court has “discretion whether or not to grant a motion to withdraw or
amend a post-conviction petition.”). As to ineffectiveness claims, an
appellant must satisfy a three-part test by showing that: “(1) his underlying
claim is of arguable merit; (2) counsel had no reasonable basis for his action
or inaction; and (3) the petitioner suffered actual prejudice as a result.”
Spotz, supra at 311. Here, even if Gardner could establish that one or
more of his claims is of arguable merit and was not a strategic decision on
the part of counsel, he would be unable to meet the prejudice prong. Actual
prejudice is established “if there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.”
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super 2013). Here,
evidence of Gardner’s guilt was overwhelming and included multiple
individuals testifying to the events of the day and an eyewitness account of
Gardner committing the shooting. Accordingly, the result would not have
differed even if counsel erred in his representation of Gardner.
-6-
J-S55004-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2016
-7-