J-S60011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN MATTHEW HICKMAN,
Appellant No. 1811 WDA 2016
Appeal from the PCRA Order November 23, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010232-2007
and CP-02-CR-0017304-2006
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 19, 2017
Appellant, Shawn Michael Hickman, appeals from the order entered on
November 23, 2016, dismissing his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the facts of this case as follows:
On November 19, 2009, [Appellant] proceeded to a jury trial
before the Honorable Judge John Kelly. At CC2006617304,
[Appellant] was charged with 29 counts of burglary, 15 counts of
theft by unlawful taking, 15 counts of receiving stolen property,
19 counts of criminal mischief, and one count each of attempted
burglary and criminal conspiracy. At CC200710232, [Appellant]
was charged with robbery – infliction of serious bodily injury,
and [two] counts of recklessly endangering another person
(REAP). The cases were consolidated for trial.
On November 19, 2009, at CC200617304, [Appellant] was found
guilty at counts 2 through 6, 29, 30, 32, 33, 56, 57, 58, and 61.
At CC200710232, [Appellant] was found guilty of robbery –
infliction of serious bodily injury.
*Former Justice specially assigned to the Superior Court.
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Trial Court Opinion, 3/1/2017, at 1 (superfluous capitalization omitted;
original footnotes omitted).
The trial court sentenced Appellant on January 29, 2010. Following
sentencing, the two cases diverged procedurally. Ultimately, Appellant filed
a pro se PCRA petition at CC200617304, seeking reinstatement of his
appellate rights nunc pro tunc and the trial court granted the request. The
Commonwealth conceded that the sentence imposed at CC200617304 was
illegal. Thereafter, the trial court convened a resentencing hearing on
September 30, 2013 and resentenced Appellant at both CC200617304 and
CC200710232. More specifically, Appellant “was resentenced at
CC200710232 to [eight] to 16 years of incarceration. At CC200617304[,]
[Appellant] was resentenced to [two] to [four] years of incarceration
followed by a [five]-year period of probation all to run consecutive to the
sentence imposed at CC200710232.” Id. at 2. We affirmed Appellant’s
judgment of sentence at both docket numbers on May 9, 2014 and our
Supreme Court denied further review on September 18, 2014.1 See
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1
The Commonwealth argues that the PCRA petition filed at CC200710232 is
untimely because, as briefly mentioned, the two cases advanced on different
procedural tracks and the judgment of sentence at CC200710232 became
final around February 28, 2010, which was more than a year before the
initiation of the present collateral proceedings. The Commonwealth reasons
that the lack of post-sentence and direct appeal proceedings at
CC200710232 compels the determination that Appellant’s judgment of
sentence in that matter became final at an earlier date. See
Commonwealth’s Brief at 25-27. Upon review, we note that there were
(Footnote Continued Next Page)
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Commonwealth v. Hickman, 104 A.3d 44 (Pa. Super. 2014);
Commonwealth v. Hickman, 2014 WL 10936779 (Pa. Super. 2014)
(unpublished memorandum); Commonwealth v. Hickman, 99 A.3d 924
(Pa. 2014).
On March 19, 2015, Appellant filed a single, timely pro se PCRA
petition captioned with both docket numbers. The PCRA court appointed
_______________________
(Footnote Continued)
several procedural irregularities that were potentially overlooked by a prior
panel, which may suggest that the Commonwealth has legitimate concerns
regarding timeliness. However, the Commonwealth should have brought
those concerns to the attention of the prior panel of this Court. “It is
beyond the power of a Superior Court panel to overrule a prior decision of
the Superior Court, except in circumstances where intervening authority by
our Supreme Court calls into question a previous decision of this Court.”
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). As it
stands now, however, we cannot overlook the fact that this Court affirmed
Appellant’s judgment of sentence at both docket numbers (CC200710232
and CC200617304) and our Supreme Court denied further review.
Thereafter, Appellant had 90 days to file a petition for certiorari with the
United States Supreme Court and another year to file a timely PCRA petition.
See U.S. S.Ct. Rule 13 (petition for writ of certiorari must be filed within
ninety (90) days of the entry of the judgment for which United States
Supreme Court review is sought); Commonwealth v. King, 999 A.2d 598,
599 n.1 (Pa. Super. 2010) (a judgment of sentence becomes final ninety
(90) days after the Pennsylvania Supreme Court denies allocatur as a
defendant has ninety (90) days from said denial in which to file a petition for
writ of certiorari to the United States Supreme Court); 42 Pa.C.S.A. §
9545(b)(1) (a PCRA petition shall be filed within one year of the date the
judgment becomes final). Thus, Appellant had until December 17, 2015 to
file timely PCRA petitions. As discussed below, Appellant filed a single,
timely pro se PCRA petition captioned at both CC200710232 and
CC200617304 on March 19, 2015. Contrary to the Commonwealth’s
contention, we are bound by the prior panel’s affirmance of Appellant’s
judgment of sentence at both docket numbers on May 9, 2014 and, likewise,
constrained to find that we currently have jurisdiction over Appellant’s timely
petition for collateral relief.
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counsel who filed an amended PCRA petition captioned with both docket
numbers. On September 13, 2016, pursuant to Pa.R.Crim.P. 907, the PCRA
court issued its notice of intent to dismiss the PCRA petition without a
hearing. Appellant did not respond. On November 23, 2016, the PCRA
dismissed Appellant’s PCRA petition. This timely appeal resulted.2
On appeal, Appellant presents the following issue for our review:
I. Whether [Appellant] should be granted a new trial, where
trial counsel was ineffective, which in the circumstances of
the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place.
Appellant’s Brief at 11.
While presented as a single issue on appeal, Appellant contends that
trial counsel was ineffective in two respects. Before examining the merits,
however, we set forth our well-settled standard of review:
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. Our
scope of 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 PCRA court level.
Counsel is presumed effective; thus, an appellant has the burden
of proving otherwise. In order for Appellant to prevail on a claim
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2
Appellant filed a notice of appeal on November 30, 2016. The trial court
entered an order on December 8, 2016, pursuant to Pa.R.A.P. 1925(b)
directing Appellant to file a concise statement of errors complained of on
appeal no later than March 8, 2017. On February 8, 2017, Appellant filed a
timely Rule 1925(b) statement. The PCRA court subsequently issued an
opinion pursuant to Pa.R.A.P. 1925(a) on March 1, 2017.
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of ineffective assistance of counsel, he must show, by a
preponderance of the evidence, ineffective assistance of counsel
which ... so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken
place.
To prevail on his ineffectiveness claims, Appellant must plead
and prove by a preponderance of the evidence that (1): the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) Appellant
suffered prejudice because of counsel's action or inaction. With
regard to the reasonable basis prong, we will conclude that
counsel's chosen strategy lacked a reasonable basis only if
Appellant proves that an alternative not chosen offered a
potential for success substantially greater than the course
actually pursued. To establish the prejudice prong, Appellant
must show that there is a reasonable probability that the
outcome of the proceedings would have been different but for
counsel's action or inaction.
Commonwealth v. Lawrence, 165 A.3d 34, 40–41 (Pa. Super. 2017)
(internal citations, quotations, and brackets omitted).
In his first issue presented, Appellant claims that trial counsel was
ineffective for failing to impeach Commonwealth witness, Leann Knuf, with
evidence that Knuf pled guilty to a crimen falsi crime within 10 years of trial.
Appellant’s Brief at 24-26. Appellant claims Knuf implicated him in a 2004
residential burglary (which was one of the offenses subject to adjudication at
CC200617304) and trial counsel should have questioned Knuf regarding her
2009 guilty plea for theft by unlawful taking, “which would have gone to her
veracity as a witness, not to mention, a pattern of behavior as she had
already admitted to playing a role in a burglary.” Id. at 25.
Here, the PCRA court determined that Appellant did not establish that
there was a reasonable probability that the outcome of the proceedings
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would have been different had counsel questioned Knuf about her prior
crimen falsi crime. Trial Court Opinion, 3/1/2017, at 3. Knuf admitted to
her own culpability in the 2004 burglary at Appellant’s trial, so her credibility
was already in question before the jury. Moreover, the trial court noted that
Knuf’s testimony was corroborated by another cohort, Nicole Ohls, which
“placed [Appellant] at the scene of the crime and actively involved in the
burglary.” Id. Upon review, we agree. Moreover, Appellant had the burden
to plead and prove he was entitled to relief. While Appellant baldly
contends that Knuf has a prior 2009 conviction for theft by unlawful taking,
he did not attach any document or other evidence to his PCRA petition to
substantiate his claim. A PCRA petitioner must “attach to the petition any
affidavits, records, documents, or other evidence which show the facts
stated in support of the grounds for relief, or the petition shall state why
they are not attached.” Pa.R.Crim.P. 902(D). Because there was no
reasonable probability that the outcome of the proceeding would have been
different and the certified record does not contain any evidence of Knuf’s
prior conviction, Appellant’s first issue lacks merit.
Next, Appellant argues that trial counsel was ineffective “for failing to
use reasonable diligence to investigate if a key witness, [Thomas] Gordon,
had suffered from hearing loss as he was the sole witness to identify
Appellant and did so on the basis of hearing Appellant’s voice.” Appellant’s
Brief at 22. More specifically, Appellant avers:
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A review of the record in this case reveals that during direct and
cross-examination, Thomas Gordon, the only witness to the June
27, 2007 robbery who was able to identify [] Appellant solely
based on voice, had asked at least 12 times to have the person
asking the question “speak up,” repeat the question, clarify the
question by asking if he heard properly, state he could not hear
the question being asked, or answered a question in a form that
did not make sense. The trial transcript not only reveals that Mr.
Gordon was having difficulty hearing, but that [trial counsel] had
notice of his apparent struggle to hear the questions. Since []
Appellant’s incarceration, [] Appellant has discovered through
Mr. Gordon’s brother, Eric Gordon, that Mr. Gordon is deaf in one
(1) ear. Further, Eric Gordon relayed that Mr. Gordon had been
deaf in one (1) ear at the time of the robbery in 2007.
* * *
The failure of [trial counsel] to investigate or question the
witness as to how long he had been suffering hearing loss, under
the circumstances was unreasonable and prejudicial to
Appellant.
Appellant’s Brief at 28.
In this case, the PCRA court noted that Appellant’s claim did not arise
until after trial and, thus, was subject to a four-prong test for
after-discovered evidence:
To succeed on an after-discovered evidence claim, the petitioner
must prove that (1) the evidence has been discovered after trial
and it could not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not cumulative; (3) it is
not being used solely to impeach credibility; and (4) it would
likely compel a different verdict.
Commonwealth v. Payne, 2017 WL 3911803, at *8 (Pa. Super. 2017)
(internal citation and quotation omitted).
Applying the above-test, the trial court determined:
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[Appellant] fail[ed] to allege, as required, that the evidence was
unobtainable before the conclusion of trial through reasonable
diligence. There [was] also no averment [as to] when
[Appellant] learned that Thomas Gordon [was] deaf in one ear
[at] the [time of the] 2007 robbery so that the [PCRA court
could] determine the timeliness of this claim. And, finally, the
[PCRA court did] not have any affidavits before it that Thomas
Gordon was in fact deaf in only one ear when the robbery
occurred. [The PCRA court had] only an unsupported allegation
of this claim. Therefore, this issue too [was] without merit.
Trial Court Opinion, 3/1/2017, at 4.
Upon review, we agree. Appellant has not met his burden of pleading
and proving that his proffered after-discovered evidence was unobtainable
before the conclusion of trial through reasonable diligence. By his own
admission, Appellant was aware that the witness was having difficulty
hearing at trial in 2009, but then waited until 2015 to bring this claim.
Moreover, we note that, similar to his first issue, Appellant fails to
substantiate his second claim with evidence pursuant to Pa.R.Crim.P.
902(D). Furthermore, while Appellant baldly claims that there were 12
occasions that the witness was having trouble hearing during trial, he has
not pointed to the specific instances in the certified record. See
Commonwealth v. Fransen, 42 A.3d 1100, 1116 (Pa. Super. 2012) (a
claim is waived for failure to direct this Court's attention to that part of the
record substantiating his claim); see also Commonwealth v. Beshore,
916 A.2d 1128, 1140 (Pa. Super. 2007) (holding that the failure to properly
develop an argument in an appellate brief, including proper citation to the
record, results in waiver; this Court will not “scour the record to find
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evidence to support an argument”); see also Pa.R.A.P. 2119(c). For all of
the foregoing reasons, Appellant’s second issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
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