Com. v. Lewis, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM LEWIS :
:
Appellant : No. 1724 EDA 2020
Appeal from the PCRA Order Entered August 25, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001072-2000
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 18, 2021
Appellant William Lewis appeals from the order denying, without an
evidentiary hearing, his first Post Conviction Relief Act1 (PCRA) petition.
Appellant raises several claims of trial counsel’s ineffectiveness. We affirm in
part, vacate in part, and remand for further proceedings, as set forth below.
We adopt the PCRA court’s facts and procedural history. See PCRA Ct.
Op., 10/21/20, at 1-2; Pa.R.Crim.P. 907 Notice, 7/20/20, at 2 n.4. Briefly,
Appellant was charged with twelve counts of robbery and related offenses
stemming from the robbery of a grocery store in 2000. Crim. Compl.,
1/14/00. On October 5, 2015, the jury convicted Appellant of the above
offenses. Pa.R.Crim.P. 907 Notice at 2 n.4; accord Commonwealth v.
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1 42 Pa.C.S. §§ 9541-9546.
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Lewis, 3825 EDA 2016, 2017 WL 6462423, at *1 (Pa. Super. filed Dec. 19,
2017) (unpublished mem.). The trial court ultimately sentenced Appellant to
an aggregate sentence of twenty-eight-and-a-half to seventy years’
imprisonment. Order, 10/12/16.
Appellant appealed to this Court, which affirmed. Lewis, 2017 WL
6462423, at *1. Appellant did not file a petition for allowance of appeal with
our Supreme Court.
On August 1, 2018, Appellant timely filed a pro se first PCRA petition.
PCRA Pet., 8/1/18. The PCRA court appointed counsel, who filed an amended
PCRA petition on April 29, 2019. Id. Am. PCRA Pet., 4/29/19.
On July 20, 2020, the PCRA court issued a Rule 907 notice stating that
Appellant’s issues lacked merit. Pa.R.Crim.P. 907 Notice at 1. Appellant did
not file a response, and on August 25, 2020, the PCRA court denied Appellant’s
PCRA petition. Order, 8/25/20.
Appellant timely appealed and timely filed a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court filed a responsive opinion, which also
incorporated its Rule 907 notice by reference.
Appellant raises the following issues, which we reordered to facilitate
disposition:
1. The PCRA court [erred] when it denied Appellant an
evidentiary hearing and post-conviction relief on his claim that
trial counsel was ineffective for failing to request necessary
jury instructions, and object to improper jury instructions.
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2. The PCRA court [erred] when it denied Appellant an
evidentiary hearing and post-conviction relief on his claim that
trial counsel was ineffective for failing to object to inadmissible
evidence (incarceration).
3. The PCRA court [erred] when it denied Appellant an
evidentiary hearing and post-conviction relief on his claim that
trial counsel was ineffective for failing to impeach witnesses
for the Commonwealth with available impeachment evidence,
and to exploit the use of leniency agreements.
4. The PCRA court [erred] when it denied Appellant an
evidentiary hearing and post-conviction relief on his claim that
trial counsel was ineffective during plea negotiations.
Appellant’s Brief at 8 (formatting altered).
We briefly summarize Appellant’s arguments for his initial three issues
together. In support of his first issue, Appellant asserts trial counsel was
ineffective by failing to request several jury instructions and object to a jury
charge defining reasonable doubt. Id. at 25-26. In support of his second
issue, Appellant claims trial counsel was ineffective by failing to object to
multiple references of his incarceration. Id. at 29-31. Appellant disagrees
with the trial court’s reasoning that those references were harmless error. Id.
at 32. For his third issue, Appellant contends that trial counsel was ineffective
by failing to impeach two Commonwealth witnesses, specifically James Sadler
and Edward Davis, with their prior criminal records and plea agreements. Id.
at 22, 24.
Our standard of review follows:
[O]ur standard of review from the denial 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
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error. 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.
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel 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. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
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Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029 (Pa.
2019).
Further, it is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not
necessary. To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019). We
add that our Supreme Court has explained that “although generally no
reference may be made at trial in a criminal case to a defendant’s arrest or
incarceration for a previous crime, there is no rule in Pennsylvania which
prohibits reference to a defendant’s incarceration awaiting trial or arrest for
the crimes charged.” Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa.
2003) (citations omitted); accord Commonwealth v. Horne, 89 A.3d 277,
284 (Pa. Super. 2014).
Following our review of the record, the parties’ briefs, and the
conclusions of the PCRA court, we affirm Appellant’s initial three issues on the
basis of the PCRA court’s opinion. See PCRA Ct. Op. at 1; Pa.R.Crim.P. 907
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Notice, at 2 n.4.2 Specifically, for Appellant’s first claim, we agree with the
PCRA court’s reasoning that the requested jury instructions were not justified
by the record and the trial court did not misstate the Commonwealth’s burden
of proof. See Pa.R.Crim.P. 907 Notice at 2 n.4. In any event, we must reject
Appellant’s boilerplate allegation of prejudice. See Sandusky, 203 A.3d at
1044. With respect to Appellant’s second claim, we agree with the PCRA court
that in context, the references to Appellant’s pre-arrest incarceration due to
his pending trial on the underlying crimes merit no relief. See Pa.R.Crim.P.
907 Notice at 2 n.4; Johnson, 838 A.2d at 680.
As for Appellant’s third claim, the PCRA court accurately notes that
Appellant failed to identify the portion of Sadler’s testimony, which spanned
over a hundred pages, that trial counsel should have impeached. See
Pa.R.Crim.P. 907 Notice at 2 n.4. The PCRA court, however, also held that
Sadler’s testimony was not adverse to Appellant. See id. After thorough
review of Sadler’s and Davis’s testimony, we agree with the PCRA court that
their testimony established either that Appellant was not present at the scene
or that he was not involved. See, e.g., N.T. Trial, 10/1/15, at 162 (Sadler
testifying that Appellant was not involved); N.T. Trial, 9/30/15, at 180 (Davis
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2 We note that the PCRA court held that Appellant had waived his issues due
to a vague Rule 1925(b) statement, but nonetheless incorporated the
reasoning in its Rule 907 notice, which held those same issues lacked merit.
PCRA Ct. Op. at 1. Because the PCRA court addressed Appellant’s issues on
the merits, we decline to find Rule 1925(b) waiver.
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denying Appellant’s presence at robberies). We cannot conclude that trial
counsel’s inaction, i.e., his decision to not impeach Sadler or Davis, was
unreasonable. See Sandusky, 203 A.3d at 1043-44.
In support of his fourth issue, Appellant argues that trial counsel was
ineffective “by failing to advise him on the impact of his prior record score at
sentencing, the applicable sentencing guidelines, and the statutory” maximum
sentences. Appellant’s Brief at 17. Appellant reasons that but for trial
counsel’s ineffectiveness in not discussing the above, he would have accepted
one of the Commonwealth’s two plea offers. Id.
In Commonwealth v. Steckley, 128 A.3d 826 (Pa. Super. 2015), this
Court discussed Lafler v. Cooper, 566 U.S. 156 (2012), which
explained that a post-conviction petitioner seeking relief on the
basis that ineffective assistance of counsel caused him or her to
reject a guilty plea must demonstrate the following circumstance:
But for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the
court would have accepted its terms, and that the conviction
or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence
that in fact were imposed.
Steckley, 128 A.3d at 832 (citation omitted and formatting altered). This
Court has held that counsel is ineffective by failing to notify the defendant of
the potential sentencing exposure when conveying a plea offer. See id. at
832 n.2.
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Additionally, in Commonwealth v. Colavita, 993 A.2d 874 (Pa. 2010),
our Supreme Court announced that as “a general rule, a lawyer should not be
held ineffective without first having an opportunity to address the accusation
in some fashion.” Colavita, 993 A.2d at 895. Our Supreme Court has made
“clear this Court’s strong preference that counsel be heard from before being
found ineffective.” Id.
Initially, we agree with the PCRA court that Appellant has the burden of
including “evidence of either of the Commonwealth’s purported plea offers.”
See Pa.R.Crim.P. 907 Notice at 2 n.4; Steckley, 128 A.3d at 832. Plea offers,
however, may be communicated verbally by the Commonwealth and therefore
may not necessarily be documented in the record. Our review of the record
does not definitively verify the non-existence of any of the two plea offers at
issue. See, e.g., Appellant’s Brief at 19 (referencing offers made on and
before the first day of trial); cf. N.T. Trial, 10/2/15, at 193 (referencing
“another offer” that had been given previously but without discussing any
details). Therefore, we cannot definitively hold that no genuine issue of
material fact exists such that the PCRA court properly denied Appellant’s
request for an evidentiary hearing. See Maddrey, 205 A.3d at 328. For this
reason, we are constrained not to agree with the PCRA court’s holding that
Appellant would have presumptively rejected any plea bargain given his
defense strategy. See Steckley, 128 A.3d at 832. Under the unique
circumstances of this case, and out of an abundance of caution, it is prudent
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to remand for an evidentiary hearing only on this issue at which Appellant, his
trial counsel, and counsel for the Commonwealth may testify, as well as any
other witnesses the PCRA court deems appropriate. See Colavita, 993 A.2d
at 895.
In sum, we affirm the PCRA court’s order with respect to Appellant’s first
three issues, vacate the PCRA court’s order with respect to the plea offer
claim, and remand for an evidentiary hearing limited to that issue as set forth
above. See Maddrey, 205 A.3d at 328; Sandusky, 203 A.3d at 1043-44.
Order affirmed in part and vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2021
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