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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SAHEED 0. SAUNDERS
Appellant No. 308 EDA 2016
Appeal from the PCRA Order December 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009795-2008
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD*, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 06, 2017
Appellant, Saheed 0. Saunders, appeals pro se from the order entered
in the Court of Common Pleas of Philadelphia County, denying his petition
filed pursuant to the Post Conviciton Relief Act ("PCRA"), 42 Pa.C.S.A. §§
9541-9546. We vacate and remand for an evidentiary hearing.
We assume the parties' familiarity with the facts underlying Saunders's
convictions. We direct the interested reader to the trial court's opinion. See
Trial Court Opinion, 10/1/13, at 2-4. After this Court affirmed his
convictions, see Commonwealth v. Saunders, No. 2208 EDA 2013 (Pa.
Super., filed July 7, 2014) (unpublished memorandum) (affirming based on
* Former Justice specially assigned to the Superior Court.
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the trial court's opinion), Saunders filed a timely pro se PCRA petition. The
petition alleged, among other claims, the ineffective assistance of trial
counsel.
The PCRA court appointed counsel who subsequently filed a "no -merit"
letter and petition to withdraw pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). The PCRA court issued Rule 907 notice. Saunders
filed two responses, but the PCRA court granted counsel's petition to
withdraw and dismissed the PCRA petition without a hearing. This timely
appeal followed.'
"On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court's findings are
supported by the record and without legal error." Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted).
In his pro se PCRA petition, Saunders alleged trial counsel's ineffective
assistance in failing to call an alibi witness, Sherry Lockett. As described
below, Saunders is entitled to a hearing on this claim.
' Saunders's appeal had to be filed by January 20, 2016. See Pa.R.A.P.
903(a). Saunders is incarcerated, at SCI Greene, the Commonwealth's only
supermax prison, and filed his appeal pro se. His notice of appeal is dated
January 16, 2016, and the postmark on the envelope attached to the notice
of appeal is dated January 19. "Pursuant to the prisoner mailbox rule, we
deem a document filed on the day it is placed in the hands of prison
authorities for mailing." Commonwealth v. Patterson, 931 A.2d 710, 714
(Pa. Super. 2007). This appeal is timely.
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To be entitled to relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that the conviction or sentence
arose from one or more of the errors enumerated in § 9543(a)(2) of the
PCRA. One such error involves the ineffective assistance of counsel. The law
presumes counsel's effectiveness; it is the petitioner's burden to prove the
contrary. See Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super.
2002).
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel's ineffectiveness so undermined the truth -determining process
that no reliable adjudication of guilt or innocence could have taken place.
See 42 Pa.C.S.A. § 9543(a)(2)(ii). This requires the petitioner to plead and
prove that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. See Commonwealth v.
Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). Failure to prove
any one of these three elements causes the claim to fail. See id.
"Where a[n appellant] claims that counsel was ineffective for failing to
call a particular witness, we require proof of that witness's availability to
testify, as well an adequate assertion that the substance of the purported
testimony would make a difference in the case." Commonwealth v.
Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation omitted; brackets in
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original). See also 42 Pa.C.S.A. § 9545(d)(1). A PCRA petitioner must
demonstrate the following:
(1) the witness existed; (2) the witness was available; (3) trial
counsel was informed of the existence of the witness or should
have known of the witness's existence; (4) the witness was
prepared to cooperate and would have testified on appellant's
behalf; and (5) the absence of the testimony prejudiced
appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation
omitted).
Saunders provided a signed certification as required by § 9545(d)(1).2
Specifically, he alleged that Lockett "would and could have testified" to his
"whereabouts" and would have placed him away from the commission of the
crime. PCRA Petition, filed 2/23/15, at 6 § 12, 8. Simply put, she would have
provided him with an alibi.
Saunders's PCRA counsel construed this as a claim that was precluded
by what transpired at trial. There, trial counsel, David Rudenstein, Esquire,
2 The Commonwealth claims that "defendant made no offer to prove his
claim, whether by affidavit or otherwise," nor did he "offer a certification
from himself, counsel, or Sherry Lockett." Commonwealth's Brief, at 9.
Saunders was not required to file an affidavit. "Where a petitioner requests
an evidentiary hearing, the petition shall include a signed certification as to
each intended witness stating the witness's name, address, date of birth and
substance of testimony and shall include any documents material to that
witness's testimony." 42 Pa.C.S.A. § 9545(d)(1) (emphasis added). See
also Commonwealth v. Brown, 767 A.2d 576, 583 (Pa. Super. 2001)
(stating § 9545(d)(1) requires "signed certification" from a potential witness,
not an affidavit). Saunders provided a signed certification in his PCRA
petition, complying with § 9545(d)(1). See PCRA Petition, filed 2/23/15, at 6
§ 12, 8.
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stated that for "strategic reasons" he was not going to present Lockett as a
witness because she "has not been all that cooperative...." N.T., Trial,
3/7/13, at 162-163. The trial court inquired of Saunders, "[d]id you listen to
your lawyer talking and [do] you agree with what he said, sir?" Id., at 163.
And Saunders responded, "[y]es." Id. The trial court asked Saunders
further, "[s]o you don't believe that there is any necessity at this time to call
any witnesses?" Id. And Saunders responded, "[n]o." Id.
Relying on the legal precept that "a defendant who makes a knowing,
voluntary, and intelligent decision concerning trial strategy will not later be
heard to complain that trial counsel was ineffective on the basis of that
decision," Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)
(citation omitted), PCRA counsel reasoned that Saunders's colloquy
foreclosed relief, see Letter of No -Merit, filed 10/29/15, at 5-7
(unnumbered). The PCRA court agreed with this reasoning to deny Saunders
relief on this claim, see PCRA Court Opinion, filed 4/6/16, at 7-8, as does
the Commonwealth on appeal, see Commonwealth's Brief, at 7-8.
Saunders's claim in his PCRA petition is that Lockett "would and could
have testified" to his "whereabouts" and would have placed him away from
the commission of the crime, but that his trial counsel represented to him
that she was not cooperative. Saunders relied on that representation in
agreeing with his counsel's strategy at trial. As he succinctly phrases it in his
brief, "[A]ppellant only made this decision [to agree with counsel's strategy]
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based upon trial counsel's assertion that she was uncooperative and not
going to testify." Appellant's Brief, at 3. This is a different claim than that
identified by PCRA counsel, the PCRA court, and the Commonwealth.
Saunders's is a bold claim. He alleges that trial counsel dissembled at
trial about Lockett's willingness to testify. It is a claim that he bears the
burden to prove. And its resolution requires a credibility determination to be
made by the PCRA court, at an evidentiary hearing, between trial counsel
and Lockett. See Commonwealth v. Johnson, 966 A.2d 523, 540 (Pa.
2009) ("This Court has made clear that, in cases where the PCRA court
declined to hold a hearing, and where an assessment of witness testimony
was essential to a petitioner's ineffectiveness claims, the PCRA court must
make specific credibility determinations.")
Accordingly, we remand for an evidentiary hearing. Upon the
conclusion of the hearing, if the PCRA court finds Lockett credible, it shall
further address the claim of trial counsel's ineffective assistance. If it finds
trial counsel credible, it shall deny the claim.
The question remains whether the PCRA court should appoint
Saunders counsel on remand. "[C]laims of PCRA counsel's ineffectiveness
may not be raised for the first time on appeal." Commonwealth v. Henkel,
90 A.3d 16, 20 (Pa. Super. 2014) (en banc). To preserve the issue of PCRA
counsel's ineffective assistance for appellate review, the claim must first be
raised in the PCRA court in response to the Rule 907 notice and then on
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appeal. See, e.g., Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa.
2009).
Saunders alleged the ineffective assistance of PCRA counsel in his
"Objections to Finley Letter," filed on November 20, 2015, which was within
the 20 -day timeframe provided by the Rule 907 notice. Furthermore,
although inartfully drafted, Saunders explicitly raises the claim of PCRA
counsel's ineffective assistance in the argument section of both his first and
second issues presented on appeal. See Appellant's Brief, at 3, 5. And he
requests the appointment of new counsel in his "wherefore clause." See id.,
at 7.
We find Saunders preserved the issue of PCRA counsel's ineffective
assistance for our review in this appeal. By misinterpreting the claim raised
in Saunders's pro se PCRA petition, PCRA counsel rendered ineffective
assistance. Accordingly, on remand, the court is to appoint Saunders new
counsel.
In his final issue on appeal, Saunders claims the PCRA court erred in
refusing to grant him permission to file an amended PCRA petition. Rule
905(A) gives the PCRA court discretion to "grant leave to amend ... a petition
for post -conviction collateral relief at any time," and states that
"[a]mendment shall be freely allowed to achieve substantial justice."
Pa.R.Crinn.P. 905(A).
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Saunders set forth his reason for requesting leave to file an amended
petition in his "Objections to Finley Letter," filed on November 20, 2015,
and "Reply to PCRA Counsel's Response," filed on December 18, 2015. The
former, as mentioned, he filed within the timeline of the Rule 907 notice,
while the latter he filed well outside the 20 -day time limit. In both, he
explained his desire to file an amended petition to claim that trial counsel
failed to investigate and present alibi witnesses. The PCRA court refused the
filing of an amended petition because the identified claim "was [already] set
forth in his original petition, and was fully addressed by PCRA counsel in his
Finley letter." PCRA Court Opinion, filed 4/6/16, at 5.
The record supports the PCRA court's finding-Saunders simply sought
to advance a claim already included in his original petition. Permitting
amendment in such a circumstance would be futile. But we have afforded
Saunders the right to new counsel. And Saunders has identified additional
claims in his brief. See Appellant's Brief, at 5-6. Upon review, new counsel
may file an amended petition, if it is deemed necessary. If counsel files an
amended petition, it is left to the PCRA court's discretion to determine
whether any of the new claims merit consideration at the evidentiary
hearing.
Order vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017
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Com. v. Saunders, S.
Combined Opinion