Com. v. Samuels, A. ( 2019 )

J-S60029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY DARNELL SAMUELS :
:
Appellant : No. 690 MDA 2018
Appeal from the PCRA Order April 30, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001232-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 26, 2019
Appellant Anthony Darnell Samuels appeals pro se from the order
dismissing his timely first petition pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant challenges the validity of the
warrant for his arrest, the sufficiency of the evidence, and trial counsel’s
effectiveness. We affirm.
The trial court previously summarized the underlying facts of this case
as follows:
Larita Brown [(the victim)] testified to the events that took place
on the night of February 16, 2016. [The victim] was with her
boyfriend waiting for the bus at the train station in Harrisburg,
Pennsylvania when [Appellant, the victim’s ex-boyfriend,] went
over to [the victim] and demanded twenty ($20) dollars from her.
[The victim] said “no” and [Appellant] followed her around the
train station. [The victim] testified that this was an ongoing
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* Retired Senior Judge assigned to the Superior Court.
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occurrence (where [Appellant] would demand money from her)
and that [the victim] finally had enough and told [Appellant] “no
more.” [The victim] (who had a PFA against Appellant) felt
threatened and sought out an Amtrak officer.
When the Amtrak [o]fficer approached [Appellant] to ask him
what was going on, [Appellant] took off and dropped his wallet
and identification. Shortly thereafter, [Appellant] called [the
victim] and again demanded money from her. At this time, [the
victim] and her boyfriend got on the bus and two stops later,
[Appellant] got on the bus. [Appellant] “charged to the back of
the bus” and once again demanded money from [the victim].
While visibly shaking, [the victim] gave [Appellant] twenty ($20)
and [Appellant] left the bus. [The victim] went home and
[Appellant] continued to call her and demand money. [The victim]
testified that she feels so threatened that if she does not answer
the phone, something terrible is going to happen to her. [The
victim] testified that during this phone call, [Appellant] once again
threatened to kill her [as he had done earlier that evening on the
bus]. Finally, on direct examination, [the victim] testified that she
lives in fear of [Appellant].
The Commonwealth also introduced the testimony of Ben Stewart,
a patrolman with the Swatara Township Police Department, who
identified the phone number that had been calling [the victim] as
[Appellant’s].
Trial Court Op., 12/27/16, at 2-3 (footnotes and record citations omitted).
Following a bench trial, Appellant was convicted of terroristic threats and
sentenced to twenty-four to sixty months’ incarceration. Appellant timely
appealed and raised a challenge to the discretionary aspects of his sentence
and the sufficiency of the evidence. Specifically, Appellant argued that the
Commonwealth failed to prove the intent element and that the statements he
made to the victim were said “in the heat of the moment.” Commonwealth
v. Samuels, 1758 MDA 2016, at 3 (Pa. Super. filed Nov. 9, 2017)
(unpublished mem.). This Court rejected Appellant’s argument reasoning:
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Appellant’s actions . . . involved a series of events spanning a
several-hour period. Appellant harassed and threatened [the
victim] at the train station and on the bus. Those threats
continued by phone after [the victim] returned to her
home, even though [the victim] had acceded to Appellant’s
demand for money, which she surrendered to him on the
bus.
. . . [W]e conclude—as did the trial court—that the evidence was
sufficient to prove that Appellant made a threat to commit a crime
of violence against [the victim] and that the threat was
communicated with the intent to terrorize her.
Id. at 5-6 (emphasis added). This Court affirmed Appellant’s judgment of
sentence on November 9, 2017. Id. Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
Appellant’s timely pro se PCRA petition was docketed on January 16,
2018.1 On January 22, 2018, the PCRA court appointed counsel. On March
29, 2018, appointed counsel filed a motion to withdraw along with a
Turner/Finley2 letter. On April 3, 2018, the PCRA court issued a notice of its
intent to dismiss the petition without a hearing pursuant to Pa.R.A.P. 907, and
a memorandum opinion addressing Appellant’s pro se claims. The court also
granted counsel’s motion to withdraw.
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1 Appellant’s pro se PCRA petition included the following claims: (1) the victim
never swore or subscribed to the complaint in front of the issuing authority;
(2) Fifth Amendment violation of the right to confront the accuser, in that the
officer signed the complaint and the victim never came to the preliminary
hearing, and therefore the victim’s testimony was hearsay; (3) no jurisdiction
for incidents outside the affidavit of probable cause, which were the basis for
Appellant’s conviction; and (4) Fourteenth Amendment Due Process Clause
violation. See Appellant’s Pro Se PCRA Pet., 1/22/18, at 4.
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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The PCRA court docketed Appellant’s premature pro se notice of appeal
on April 23, 2018. The PCRA court subsequently dismissed Appellant’s PCRA
petition without a hearing on April 30, 2018. The PCRA court also issued an
opinion incorporating its April 3, 2018 memorandum and requested that this
Court treat Appellant’s premature appeal as timely. The PCRA court did not
order Appellant to file a Pa.R.A.P. 1925(b) statement.
Appellant, in his pro se brief, raises three issues for review, which we
have reordered as follows:
1. Is trial court in error of [sic] violation of Pa.R.Crim.P. 513 Part
(B) were [sic] no element of the crime exist were constitution
right violated inconsistent statement were made [sic] [?]
2. Whether the trial court abused its discretion in finding Appellant
guilty when their [sic] no witness and no evidence[.]
3. Was counsel ineffective for refused [sic] to file motion[?]
Appellant’s Brief at 13 (some capitalization omitted).
Initially, we must address the Commonwealth’s claim that the appeal
should be quashed because Appellant appealed from the PCRA court’s Rule
907 notice, and not a final order dismissing his petition. See Commonwealth’s
Brief at 2 (unpaginated). The Commonwealth contends that because the
underlying PCRA petition “has not been dismissed yet,” there is no final order
from which to appeal. Id. We disagree.
Although Appellant’s notice of appeal was premature when filed, the
PCRA court formally dismissed Appellant’s petition on April 30, 2018. See
PCRA Ct. Order, 4/30/18. This Court may regard a premature notice of appeal
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as timely when a final order has been subsequently entered. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”); see also Commonwealth v. Swartzfager,
59 A.3d 616, 618 n.3 (Pa. Super. 2012) (accepting a premature notice of
appeal filed after the entry of Rule 907 notice but before the entry of a final
order dismissing a PCRA petition). Therefore, we decline to quash this appeal.
We summarize Appellant’s three issues together. As to the arrest
warrant, Appellant appears to argue that “the warrant was executed falsely
and is therefore defective” because the victim did not “swear under oath or
affirmation to the events she said transpired” and the officer who signed the
affidavit did not personally witness the alleged crime.3 Appellant’s Brief at 27.
Further, he claims that he was convicted for an alleged incident that was not
mentioned in the affidavit of probable cause. Id. Finally, Appellant suggests
that he did not have an opportunity to confront the officer who signed the
arrest warrant “as a complaining witness” at the preliminary hearing. Id. at
29 & Ex. D.
Regarding his challenge to the sufficiency of the evidence, Appellant
argues that “no actual evidence was presented[,] no exhibits[,] no factual
testimony.” Id. He claims that he was ultimately convicted for events that
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3 In support of his claim, Appellant cites to State v. Bobo, which held that
under New Jersey law, a complaint must be signed “under oath in the presence
of the deputy court clerk.” State v. Bobo, 535 A.2d 983, 985 (N.J. App. Div.
1987). However, the case is non-binding on this Court.
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transpired at the bus station, although the affidavit of probable cause attached
to the criminal complaint centered on phone calls that Appellant allegedly
made to the victim after the incident at the bus station. Id. He suggests
there was no evidence to prove that he made the alleged phone calls to the
victim.
Lastly, Appellant asserts that he did not receive a fair trial because
counsel “failed to file [a] pretrial motion and cross examine the inconsistencies
resulting in the verdict of guilty.” Id. at 25. Appellant’s assertion of trial
counsel’s ineffectiveness appears to relate to his previous issues regarding the
arrest warrant and the variance between the criminal complaint and the trial
evidence.
Our standard of review from the dismissal of a PCRA petition “is limited
to examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257,
1265 (Pa. 2014) (citation omitted).
Moreover, “[t]o be entitled to PCRA relief, [the defendant] must
establish, by a preponderance of the evidence, that his conviction or sentence
resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §
9543(a)(2), and that the allegation of error has not been previously litigated
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or waived.” Id. at 1265-66. “Generally, an appellant may not raise
allegations of error in an appeal from the denial of PCRA relief as if he were
presenting the claims on direct appeal.” Commonwealth v. Price, 876 A.2d
988, 995 (Pa. Super. 2005); see also 42 Pa.C.S. § 9544(b) (“For purposes of
this subchapter, an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, . . . [or] on appeal or in a prior state
postconviction proceeding.”).
With respect to ineffectiveness claims, we note that counsel is presumed
effective, and the appellant bears the burden of proving otherwise.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013). To prevail
on an ineffectiveness claim, the appellant must establish:
(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure to
act; and (3) the [appellant] suffered prejudice as a result of
counsel’s error such that there is a reasonable probability
that the result of the proceeding would have been different
absent such error.
Commonwealth v. Lesko, 15 A.3d 345, 373 (Pa. 2011) (citation omitted).
Moreover,
[f]ailure to prove any prong of this test will defeat an
ineffectiveness claim. Commonwealth v. Basemore, 744 A.2d
717, 738 n. 23 (2000) (citation omitted). “[I]f a claim fails under
any necessary element of the Strickland test, the court may
proceed to that element first.” Lesko, at 374 (citations omitted).
When an appellant fails to meaningfully discuss each of the three
ineffectiveness prongs, he is not entitled to relief, and we are
constrained to find such claims waived for lack of development.
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Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. Super. 2014) (some
citation and quotation marks omitted).
At the outset, we note that standing alone, Appellant’s challenges to the
arrest warrant, the preliminary hearing, and the sufficiency of the evidence
are direct appeal claims that are not cognizable under PCRA. See Price, 876
A.2d at 995. Moreover, Appellant did not raise his challenge to the sufficiency
of the evidence in his initial pro se PCRA petition, in a response to the counsel’s
Turner/Finley letter or the PCRA court’s Rule 907 notice, or in an amended
petition. See Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015)
(concluding that the appellant failed to preserve an appellate claim by raising
it in a PCRA petition or in an authorized amended PCRA petition); accord
Pa.R.A.P. 302(a). Lastly, Appellant asserts that trial counsel was ineffective
without developing any arguments that trial counsel lacked a strategic basis
or that the alleged ineffectiveness resulted in prejudice. See Appellant’s Brief
at 23; Fears, 86 A.3d at 804. In short, we could find all of Appellant’s
arguments waived under the PCRA or the Rules of Appellate Procedure.
Nevertheless, we note that the PCRA court, as well as appointed PCRA
counsel, separately addressed the merits of Appellant’s claims regarding the
validity of the arrest and trial counsel’s ineffectiveness. For example, in its
memorandum opinion accompanying its Rule 907 notice, the PCRA court
reasoned:
Initially, we note that it is not necessary for the officer to have
direct, personal knowledge of the relevant facts and
circumstances on whether a crime has been committed.
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Commonwealth v. Walker, 501 A.2d 1143, 1148 ([Pa. Super.]
1985). The belief may, instead, rest solely upon facts and
information supplied by another person, so long as there is a
“substantial basis” for trusting the source and credibility of the
information. Id. Here, the police officer, based upon the totality
of the circumstances, had probable cause to believe that a crime
had been committed when he received a call regarding a violation
from a Protection from Abuse (PFA). At the time of the call, a
routine warrant check indicated that [Appellant] had an active
warrant dating from October 2015 for a previous violation of the
same PFA. As such, the officer had sufficient probable cause to
support [Appellant’s] arrest. Accordingly, this issue is without
merit.
* * *
It appears that [Appellant] alleges that since the officer who
signed the complaint did not testify at his preliminary hearing, he
was somehow denied his right to confrontation. However,
[Appellant] had a full and fair opportunity to confront both the
officer and the victim at the subsequent bench trial. Additionally,
as the officer who was the affiant in this case was relying on the
information from the victim, the victim’s testimony was all that
[was] required to meet the prima facie burden at such a hearing.
Finally, the absence of the officer/affiant at the preliminary
hearing in no way renders the direct testimony of the victim
inadmissible. As such, this claim is without merit.
PCRA Ct. Op., 4/3/18, at 2-3. The PCRA court further opined that Appellant
failed to “establish any allegations of error by trial counsel.” Id. at 4.
Therefore, the PCRA court and counsel did not refer to the need to
reframe Appellant’s direct appeal claims as claims of ineffective assistance of
counsel. See Price, 876 A.2d at 995. In light of this procedural history and
the requirement that we construe a pro se brief liberally, we decline to find
waiver under the PCRA. Commonwealth v. Lyons, 833 A.2d 245, 251-52
(Pa. Super. 2003) (stating that although the appellant’s pro se brief contained
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substantial defects, in the interest of justice, the Court would “address the
arguments that can reasonably be discerned.”). Instead, we consider the
PCRA court’s implicit determinations that Appellant failed to establish arguable
merit to his claims based on the arrest warrant, the preliminary hearing, and
the alleged differences in the conduct described in the charging documents,
at the preliminary hearing, and at trial.
With respect to the arrest warrant, Pa.R.Crim.P. 513(B)(2) provides that
“[n]o arrest warrant shall issue but upon probable cause supported by one or
more affidavits sworn to before the issuing authority in person or using
advanced communication technology. The issuing authority, in determining
whether probable cause has been established, may not consider any evidence
outside the affidavits.” Pa.R.Crim.P. 513(B)(2).
“The test in this Commonwealth for determining whether probable cause
exists for the issuance of an arrest warrant is the ‘totality of the
circumstances.’” Commonwealth v. Taylor, 850 A.2d 684, 686-87 (Pa.
Super. 2004). We have explained that “[t]he totality of the circumstances
test requires a Court to determine whether the facts and circumstances which
are within the knowledge of the officer at the time of the arrest, and of which
he has reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Smith, 979 A.2d 913, 916 (Pa.
Super. 2009) (citation omitted). Further, probable cause is based on
probability, not a prima facie showing of criminal activity; therefore, deference
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should be afforded to the magistrate’s finding of probable cause.
Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009).
As to Appellant’s claims regarding the preliminary hearing, Pa.R.Crim.P.
542(E) states: “Hearsay as provided by law shall be considered by the issuing
authority in determining whether a prima facie case has been established.
Hearsay evidence shall be sufficient to establish any element of an offense . .
. .” Pa.R.Crim.P. 542(E). In Commonwealth v. Ricker, 120 A.3d 349 (Pa.
Super. 2015), this Court held that “an accused does not have the right to
confront the witnesses against him at his preliminary hearing under those
provisions.” Ricker, 120 A.3d at 362.
As to variances between the charging documents and the evidence at
trial, this Court has noted:
A criminal complaint need simply contain “facts sufficient to advise
the defendant of the nature of the offense charged, but neither
the evidence nor the statute allegedly violated need be cited . . .
.” It follows, then, that the Commonwealth may introduce at trial
evidence not specified within the four corners of the criminal
complaint, provided that such evidence is material and competent
to the charge and presents no other reason, evidentiary or
otherwise, for its preclusion. The factfinder, in turn, may properly
convict on such evidence as long as each element of the charge
was proven beyond a reasonable doubt.
Commonwealth v. Snell, 737 A.2d 1232, 1234 (Pa. Super. 1999) (citations
omitted); see also Pa.R.Crim.P. 504(6)(a) (formerly numbered Rule
104(6)(a)). Furthermore, “[a] variance is not fatal unless it could mislead the
defendant at trial, impairs a substantial right or involves an element of
surprise that would prejudice the defendant’s efforts to prepare his defense.”
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Commonwealth v. Einhorn, 911 A.2d 960, 978 (Pa. Super. 2006) (citation
omitted).
Following our review of the record, the PCRA court’s opinion, and the
relevant legal principles, we find no error in the PCRA court’s dismissal of
Appellant’s PCRA claims. As indicated by the court, the arrest warrant was
properly executed and based on probable cause. Further, there was no error
in the trial court’s consideration of evidence outside the four corners of the
criminal complaint. Finally, because we agree with the PCRA court that
Appellant’s underlying issues have no merit, Appellant cannot claim that trial
counsel was ineffective for failing to raise them. See Basemore, 744 A.2d at738 n.23. Having discerned no abuse of discretion or legal error, we affirm
the PCRA court’s dismissal of Appellant’s PCRA petition. See Ousley, 21 A.3d
at 1242; see also Fears, 86 A.3d at 804.
Order affirmed.
Judge Shogan joins the memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/26/2019
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