Commonwealth v. Huddleston , 2012 Pa. Super. 201 ( 2012 )

OPINION BY

STRASSBURGER, J.:

Thomas J. Huddleston (Appellant) appeals from the October 11, 2000 judgment of sentence of life imprisonment following his convictions for second-degree murder, conspiracy to commit second-degree murder, and robbery.¹ We affirm.

The facts and procedural history of this case were summarized by another panel of this Court as follows.

This case arises out of the robbery and murder of David Camargo. [Appellant] and Heath Quick agreed to shoot Camargo and steal his marijuana, any money he had, and his car. [Appellant] and Quick set up a meeting with Camar-go at a K-Mart in State College to buy some drugs. After meeting at the K-Mart, Quick, Camargo and [Appellant] agreed to drive to a new meeting spot. Quick got into the car with Camargo and followed [Appellant], who was driving his girlfriend’s vehicle, to the new meeting spot in Black Moshannon State Park. After entering the park, [Appellant] stopped his vehicle and got out to urinate. It was at this time that Quick shot and killed Camargo. [Appellant] and Quick then took Camargo’s body and placed it into [Appellant’s] trunk. [Appellant] drove his girlfriend’s vehicle with Camargo’s body in the trunk and Quick drove Camargo’s vehicle. The two men drove to a place called “Devil’s Elbow,” where they threw Camargo’s body down an embankment. When Ca-margo’s body did not go far enough down, [Appellant] went down the embankment and pushed the body further down. [Appellant] and Quick split up the marijuana and money they took from Camargo. The police eventually arrested both [Appellant] and Quick. [Appellant] gave a statement to the police detailing his role in Camargo’s death.

The Commonwealth charged [Appellant] with murder of the first degree, conspiracy to commit murder of the first degree, murder of the second degree, conspiracy to commit murder of the second degree, robbery, and conspiracy to commit robbery. A jury trial was held on October 9 through 11, 2000. At the conclusion of the trial, the jury found [Appellant] guilty of murder of the second degree, robbery and conspiracy to commit murder of the second degree and robbery. The Honorable Thomas King Kistler sentenced [Appellant] to life in prison. [Appellant] filed post-trial motions on October 18, 2000, raising various errors. On March 13, 2001, Judge Kistler denied the motions. On April 12, 2001, [Appellant] filed a notice of appeal. On April 18, 2001, Judge Kistler ordered [Appellant] to file a Pa.R.A.P. 1925(b) statement. On May 8, 2001, Judge Kistler had not received a Rule 1925(b) statement from [Appellant] or his attorney. Accordingly, he found this failure to evidence a waiver of all of [Appellant’s] claims. [Appellant] through his attorney filed a Rule 1925(b) statement that same day. On June 28, 2002, this Court agreed with Judge Kist-ler’s finding and found all objections to the judgment of sentence to be waived. See Commonwealth v. Huddleston, 806 A.2d 461 (Pa.Super.2002) (Table). Our Supreme Court denied allocatur on April 22, 2003. See Commonwealth v. Huddleston [573 Pa. 664], 820 A.2d 703 (Pa.2003).

Commonwealth v. Huddleston, 943 A.2d 314 (Pa.Super.2007) (Table).

Appellant hired new counsel no later than December of 2003. It was not until March 13, 2006, however, that counsel filed on Appellant’s behalf a petition pursuant to the Post Conviction Relief Act (PCRA),² seeking reinstatement of his direct appeal rights. Judge Kistler granted the petition and reinstated Appellant’s appeal rights over the Commonwealth’s objection to the timeliness of the PCRA petition. On Appellant’s nunc pro tunc appeal, this Court agreed with the Commonwealth and quashed the appeal, determining that the PCRA court lacked jurisdiction to grant Appellant PCRA relief. See id. Counsel did not inform Appellant of the outcome of his appeal until September 12, 2008, long after the time had expired for Appellant to seek review by our Supreme Court.

Appellant filed a second PCRA petition on September 22, 2008, again seeking reinstatement of his direct appeal rights based upon prior PCRA counsel’s ineffectiveness in failing to file a timely petition for relief under the PCRA. Appellant claimed that the petition satisfied a timeliness exception because it was filed within 60 days of discovering that prior PCRA counsel effectively abandoned him. The Commonwealth again challenged the PCRA court’s jurisdiction to entertain an untimely petition.

On May 9, 2011, the PCRA court held an evidentiary hearing concerning the allegations of Appellant’s petition. On August 22, 2011, Judge Kistler held another hearing to resolve the remaining factual issues concerning the timeliness of Appellant’s second PCRA petition. Based upon the evidence offered, Judge Kistler found that Appellant hired his first PCRA counsel “shortly after the PCRA clock began to run, yet the attorney waited over two years to file a PCRA petition[,]” which constituted attorney abandonment as discussed in Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007). PCRA Court Opinion, 9/16/2011, at 5. Because Appellant filed his second PCRA petition within 60 days of discovering the abandonment, Judge Kistler entered an order reinstating Appellant’s direct appeal rights. Id. at 10.

Appellant filed a timely notice of appeal from the October 11, 2000 judgment of sentence, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925. Appellant presents two questions for our consideration.

1. Whether the court below abused its discretion in admitting the statements of the principal in the killing that were made to a police officer during a traffic checkpoint stop that occurred after the killing, which statements had been objected-to as hearsay and not relevant?

Whether the court below erred in finding that the evidence sufficed to convict [Appellant] of second-degree murder, conspiracy/second-degree murder, and offenses merged or included, in that the evidence failed to prove a killing in the perpetration of a felony, aid or agreement for complicity, a plan or shared intent for conspiracy, or the intent for conspiracy?

Appellant’s Brief at 7.

Before we address the merits of Appellant’s questions, we consider the Commonwealth’s argument that the PCRA court erred in reinstating Appellant’s direct appeal rights. We begin by examining the law concerning attorney abandonment as a basis for invoking a timeliness exception to the PCRA.

Section 9545(b)(1)(ii) of the PCRA provides that a PCRA petition must be filed within one year of the date on which the judgment of sentence became final, unless the petitioner alleges and proves that “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(h). If the petitioner so alleges and proves, the petition will not be dismissed as untimely if it was “filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

In Bennett, supra, our Supreme Court found that attorney abandonment may constitute a factual basis for the section 9545(b)(1)(h) timeliness exception. In that case, the appeal from the dismissal of Bennett’s first, timely, PCRA petition was dismissed by this Court because counsel failed to file a brief. 930 A.2d at 1266. Bennett filed a second PCRA petition alleging that he had attempted to find out the status of his PCRA appeal, did not learn that it was dismissed due to counsel’s failure to file a brief until he received a letter from this Court explaining what had transpired,³ and filed a new PCRA petition within 60 days of so learning. Id. at 1274. The PCRA court granted Bennett leave to appeal the dismissal of his first PCRA petition nunc pro tunc, but this Court quashed the appeal as untimely. Our Supreme Court reversed this Court, holding that Bennett sufficiently alleged that he had been abandoned by counsel on his first PCRA petition and acted with due diligence in ascertaining the fact of the abandonment to satisfy the timeliness exception of the PCRA found at section 9545(b)(1)(ii). Id. at 1272.

In Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011), Watts’s direct appeal was dismissed in 2002 because counsel failed to file a docketing statement. Within 60 days of learning of the dismissal in August 2003, Watts filed a PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc. Id. at 981. The PCRA court dismissed the petition as untimely, and this Court affirmed in August 2005, noting that Watts did not exercise due diligence in determining the status of his appeal. Id. at 982. Watts did not seek review of our decision by our Supreme Court. In 2007, Watts filed a second PCRA petition, again alleging attorney abandonment, but claiming that his petition met the timeliness exception of section 9545(b)(1)(ii) because it was filed within 60 days of the Bennett decision. Id. The PCRA court dismissed the petition as untimely, this Court reversed, and our Supreme Court reversed us, holding that the PCRA court properly dismissed Watts’ second PCRA petition. The Court held that the Bennett decision was not a fact upon which Watts could rely in meeting the timeliness exception of section 9545(b)(1)(ii). Id. at 986. The factual predicate of Watts’ claim was his counsel’s abandonment, which Watts discovered in 2003, within the one-year PCRA deadline. As such, the abandonment could not serve to satisfy section 9545(b)(1)(ii) for a petition filed in 2007. Id.

This Court sought to explain the interplay of the Bennett and Watts decisions and the language of section 9545(b) in Commonwealth v. Smith, 35 A.3d 766 (Pa.Super.2011). In that case, Smith’s first, timely, PCRA petition was dismissed in 2001 after counsel did not file a brief on appeal. Id. at 767. Less than two weeks after the appeal was dismissed, Smith filed a second PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc, which the PCRA court granted. This Court quashed the nunc pro tunc appeal in 2005, determining that Smith’s second PCRA petition was untimely, and the Pennsylvania Supreme Court denied allowance of appeal. Id. at 768. In 2007, within 60 days of the filing of the Bennett decision, Smith filed a third PCRA petition, claiming that the petition was timely because Bennett afforded him a new method for obtaining collateral review. Id. at 769. The PCRA court dismissed the petition as untimely. This Court reversed, holding that because Smith, unlike Watts, had attempted to “become Bennett” by seeking allowance of appeal from our Supreme Court, yet had his diligent efforts to avail himself of the opportunities of the PCRA thwarted by counsel’s initial abandonment, he was now entitled to have the merits of his PCRA petition addressed by a court. Id. at 772. Although the factual predicate of Smith’s claims for purposes of section 9545(b)(l)(ii) was the dismissal of his first PCRA petition in 2001 due to counsel’s abandonment, the subsequent change in law that occurred in 2007 with the Bennett decision afforded Smith his first opportunity to present his claim pursuant to section 9545(b)(2). Id. at 771. Therefore, this Court held that Smith’s third PCRA petition satisfied the section 9545(b)(1)(ii) timeliness exception because it was filed within 60 days of the Bennett decision, i.e., within 60 days of the date that the claim could have been presented. Id.

Turning to the instant case, the Commonwealth claims that the outcome here is controlled by Watts rather than Bennett. The Commonwealth asserts that Appellant is attempting to use the Bennett decision as a new “fact” to satisfy the timeliness exception provided by section 9545(b)(1)(ii). Commonwealth’s Brief at 16-17. The Commonwealth argues that the PCRA court here improperly “fashioned an ad hoc equitable exception to the PCRA time bar.” Id. at 17 (internal quotation omitted). We disagree.

The PCRA court, in its fact-finding capacity after hearing the evidence and making credibility determinations, held that the instant case is not materially distinguishable from Bennett. Appellant’s judgment of sentence became final in July 2003. By December 2003, Appellant had hired PCRA counsel. PCRA Court Opinion, 9/16/2011, at 2. From 2003 through 2008, Appellant’s mother, aunt, and cousin contacted counsel on Appellant’s behalf on a monthly basis to inquire about the status of the PCRA action and appeal. Id. at 5. Although the nunc pro tunc direct appeal was quashed by this Court on October 10, 2007, counsel did not send a letter to Appellant advising him of this result until September 12, 2008.⁴ Id. at 2-3. Ten days after he became aware of his counsel’s abandonment, which was the first opportunity he had to seek relief, Appellant filed his second PCRA petition.

From our review of the record,⁵ we discern no abuse of discretion or error of law on the part of the PCRA court in granting Appellant PCRA relief. It is clear that, unlike the appellant in Waiis, Appellant does not claim that the Bennett case was the newly-discovered fact that satisfied section 9545(b)(1)(ii); nor does he assert, as did the appellant in Smith, that the Bennett decision is what started the 60-day clock running for purposes of section 9545(b)(2). The factual predicate of Appellant’s claim, as was Bennett’s, was his counsel’s abandonment. Appellant claims, as did Bennett, that the first opportunity he had to present his claim was when he learned of the abandonment. Unlike Watts and Smith, Appellant did not litigate and lose his abandonment-by-counsel claim before Bennett was decided, then seek to use Bennett as basis to relitigate the question. Rather, despite exercising due diligence, Appellant did not discover that counsel abandoned him before Bennett became controlling precedent.

Thus, Appellant is not attempting “to tailor the factual predicate of his claim to circumvent the PCRA filing deadline.” Watts, 23 A.3d at 986. Quite the contrary, Appellant sought, and the PCRA court granted based upon application of the Bennett holding, Appellant’s first opportunity to have a court examine the merits of his direct appeal issues after both direct appeal counsel and PCRA counsel effectively abandoned him. This case involves a straightforward application of the Bennett holding, not an extension of that holding. Cf. Smith, supra. As such, we reject the Commonwealth’s challenge to the jurisdiction of the PCRA court to reinstate Appellant’s direct appeal rights, and address Appellant’s issues on their merits.

Appellant first challenges an evidentiary ruling of the trial court. “The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion.” Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super.2009) (quoting Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550 (2002)). Even when a trial court does err, however, the error does not necessarily warrant reversal. Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 636 (2010) (“[A]n erroneous ruling by a trial court on an evidentiary issue does not necessitate relief where the error was harmless beyond a reasonable doubt.”).

Appellant filed a motion in limine seeking to preclude any out-of-court statements of Quick. The trial court allowed Corporal Tuzynski of the Pennsylvania State Police to testify that Quick identified himself as T.J. Huddleston during a traffic stop that occurred two days after Camar-go’s murder. Appellant claims that this testimony was hearsay, irrelevant, and unfairly prejudicial. Appellant’s Brief at 17-19.

The trial court excluded most of the out-of-court statements of Quick, “precluding the Commonwealth from introducing any statements made by Heath Quick implicating Appellant in the homicide or the events surrounding the death of the victim, which included all statements made by Heath Quick while he was in custody at various police departments.” Trial Court Opinion, 11/30/2011, at 2. However, the trial court allowed evidence that Quick identified himself to police as “T.J. Huddleston” at a traffic stop. The trial court determined that the statement was not hearsay, as it was not being offered to prove the truth of the matter asserted, and was relevant “to demonstrate an association between Heath Quick and Appellant for the purposes of the conspiracy charges.” Id. at 3.

Clearly, Quick’s out-of-court statement was not hearsay, as it was not offered to prove that Quick was, in fact, T.J. Huddle-ston. Further, Appellant defeats his own argument of prejudice by noting that the Commonwealth “had ample and relevant [additional] evidence of association between the two[.]” Appellant’s Brief at 18. As such, even if the evidence were improperly admitted, the error was harmless and entitles Appellant to no relief. See, e.g., Commonwealth v. Charleston, 16 A.3d 505, 529 (Pa.Super.2011) (quoting Commonwealth v. Atkinson, 987 A.2d 743, 751-752 (Pa.Super.2009)) (“Harmless error exists where: ... the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence[.]”)

Next, Appellant challenges the sufficiency of the evidence to sustain his convictions.

[0]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Stays, 40 A.3d 160, 167 (Pa.Super.2012) (internal quotations and citations omitted).

Appellant claims that the Commonwealth offered insufficient evidence to prove that he was an active participant in any of the crimes of which he was convicted. Rather, Appellant argues, he did not believe Quick was serious when he said he would shoot Camargo and steal his drugs. Appellant’s Brief at 20. While acknowledging that he was with Quick during both the murder and the robbery, Appellant claims that the evidence showed that he was merely present at the scene and assisted Quick only because he feared that Quick would shoot him too. Id. at 20, 22.

The trial court addressed Appellant’s sufficiency claim as follows:

Throughout the three-day trial, the Commonwealth presented a wealth of evidence to the jury. In particular, in the Prosecution’s case-in-chief, Trooper Mahalko testified about an interview he conducted with Appellant on September 22, 1999. Trooper Mahalko testified that Appellant related to him a conversation between Appellant and Heath Quick in which Quick told Appellant that “he wanted to shoot Camargo, steal his weed, steal his car and steal whatever money he had on him.” Trooper Mahal-ko testified that Appellant, when asked if he responded to Quick’s statement, “more or less agreed with him.” Also during the interview, Appellant told Trooper Mahalko that Quick told him where he planned to dump the body, and that he knew Quick had a gun on him. Later testimony from Trooper Walter Butler confirmed that the discussed location was the site at which the body was located.

Moreover, testimony from George Burgess, Jr., who was in the car at the time the conversation took place, confirmed that Appellant and Quick discussed for “at most twenty minutes” how the robbery was to proceed. Burgess testified that while Appellant did not specifically agree to the shooting, Quick told Appellant that he planned to shoot Camargo. Burgess also confirmed that Quick had a gun with him....

The Commonwealth also introduced testimony that after Quick and Appellant met up with the victim, David Ca-margo, Quick drove Camargo’s car with Camargo in the passenger seat and followed [Appellant] to the location where the shooting occurred. Trooper Mahal-ko testified that, when asked “if this was the spot that they had planned on shooting Camargo at,” Appellant “became very pale, nervous. Turned away and just said that, no, he just had to pee. That was it.”

Additionally, the Commonwealth presented evidence that Appellant helped to dispose of the body, took home some of the marijuana taken from [Camargo], and later helped clean the vehicles of blood.

Trial Court Opinion, 11/20/2011, at 3^1 (citations omitted).

We agree that the evidence of Appellant’s knowledge of and participation in the robbery and murder, as well as the coverup, was more than sufficient to sustain the verdicts. Appellant discussed the crimes with Quick; assisted Quick in scheduling a meeting with Camargo; led Camargo to the site where Quick shot him; helped Quick transport the body to the prearranged dump site; walked down the hill to push the body farther down after it initially did not roll far enough; took a share of the spoils of the crime; went shopping the following day with Quick to purchase supplies for cleaning Camargo’s blood from the cars; and attempted to arrange an alibi for the night of the murder. From this, the jury could reasonably infer a shared intent and conclude that Appellant’s protestations of mere presence at the scene and fear for his own safety were incredible. See, e.g., Commonwealth v. Priest, 18 A.3d 1235, 1240 (Pa.Super.2011) (“It is well settled that the jury is free to believe all, some or none of a witness’s testimony.”).

Because the evidence was sufficient to support the conclusion that Appellant was an active participant in the robbery and murder, he was properly found responsible for all of Quick’s actions. See, e.g., Commonwealth v. Lambert, 795 A.2d 1010, 1025 (Pa.Super.2002) (“Since Appellant was an ‘active participant’ in the ‘criminal enterprise,’ he was criminally responsible for the criminal actions of his Co-Defendant which were committed in furtherance of the criminal endeavor.”). As such, Appellant is entitled to no relief based upon his second issue.

Judgment of sentence affirmed.

President Judge Stevens files a concurring and dissenting opinion.

1 . 18 Pa.C.S. §§ 2502(b), 903(a), and 3701(a)(1), respectively. We note that in addition to the life sentence for second-degree murder, Appellant was also sentenced to 10 to 20 years' imprisonment, concurrently, for the conspiracy and robbery convictions. The remaining convictions, not listed herein, merged for sentencing purposes.

2 . 42 Pa.C.S. §§ 9541-9546.

3 . Our Supreme Court rejected the notion that the fact that this Court's orders are a matter of public record made it impossible for them to be "unknown” to a PCRA petitioner at the time they are filed. Bennett, supra at 1275.

4 . The September 12, 2008 letter, which is part of the record before us, indicates that review of Appellant’s file by another attorney at the firm revealed that Appellant’s counsel “failed to file a timely [PCRA petition] and this resulted in your appeal being dismissed on October 10, 2007. While there is no need for me to get into details, [Appellant’s PCRA counsel] is no longer employed with my Office.” Appellant’s Motion to Reopen Record, 6/8/2011, at Exhibit B. This illustrates the wisdom of our Supreme Court’s observation that "it is illogical to believe that a counsel that abandons his or her client ... will inform his client that his case has been dismissed because of his own failures.” Bennett, 930 A.2d at 1275.

5 . We note that the Commonwealth did not cross-appeal the timeliness determination of the PCRA court, or otherwise seek inclusion in the record of the transcript of the PCRA hearings.