Com. v. Frasier, L. ( 2022 )

J-S35012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEEON ANTONIO FRASIER :
:
Appellant : No. 885 MDA 2021
Appeal from the PCRA Order Entered June 23, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005489-2018
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 8, 2022
Appellant, Leeon Antonio Frasier, appeals pro se from the June 23, 2021
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.1 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 On August 3, 2021, this Court filed a per curiam order directing Appellant to
show cause why his “appeal should not be quashed as having been taken from
a purported order which was not entered upon the appropriate docket of the
[trial] court.” See Per Curiam Order, 8/3/21 (citing Pa.R.A.P. 301(a), which
states “no order of a court shall be appealable until it has been entered upon
the appropriate docket in the trial court”). In an August 23, 2021 per curiam
order, this Court discharged the rule to show cause order and referred the
matter to the panel. On August 30, 2021, Appellant filed pro se a response
to the rule to show cause order stating that he inadvertently failed to state
the date of the order dismissing his PCRA petition in the notice of appeal
because, inter alia, he is acting pro se. See Appellant’s Response, 8/30/21.
A review of Appellant’s notice of appeal demonstrates that he is appealing the
trial court order dismissing his “PCRA [p]etition filed on March 18, 2021.” See
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The PCRA court summarized the procedural history as follows:
Following a non-jury trial held on April 22, 2019, [the trial] court
found [Appellant] guilty at count 1 - aggravated assault,
count 2 - unlawful taking, and count 3 - strangulation.[2] At
count 1, Appellant was sentenced to [54 to 108 months’]
incarceration[.] At count 2, Appellant was sentenced to 12 to 24
months[’ incarceration set to run] concurrently with [the sentence
imposed at] count 1. At count 3, Appellant was sentenced to 54
to 108 months[’ incarceration set to run] concurrently with [the
sentence imposed at] count 1. Appellant's aggregate sentence
was 54 to 108 months[’] incarceration. A timely post-sentence
motion was filed on April 30, 2019[,] and the Commonwealth filed
a response on August 2, 2019. Appellant's post-sentence motion
was denied on August 22, 2019.
PCRA Court Order, 5/24/21, at 1-2 (extraneous capitalization and original
footnotes omitted). On September 3, 2019, Appellant filed a direct appeal
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Notice of Appeal, 7/2/21. A review of the trial court docket sheet attached to
Appellant’s notice of appeal demonstrates that the trial court order dismissing
his PCRA petition was filed on June 23, 2021. Although Appellant failed to
comply with the portion of Rule 904(d) requiring the notice of appeal to include
a statement that the order appealed from has been entered on the docket,
Appellant did comply with the portion of Rule 904(d) requiring that a copy of
the trial court docket confirming entry of the challenged order be attached to
the notice of appeal. See Pa.R.A.P. 904(d) (stating, “The notice of appeal
shall include a statement that the order appealed from has been entered on
the docket. A copy of the docket entry showing the entry of the order
appealed from shall be attached to the notice of appeal.”).
When Appellant’s pro se notice of appeal is read in conjunction with the
attached trial court docket, we find that Appellant sufficiently demonstrated
that the order appealed from was entered on the trial court docket. See
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (acknowledging
that, “courts may liberally construe materials filed by a pro se litigant”), cert.
denied, 576 U.S. 1009 (2015).
2 18 Pa.C.S.A. §§ 2702(a)(1), 3921, and 2718(a)(1), respectively.
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challenging his judgment of sentence. On March 27, 2020, this Court vacated
Appellant’s judgment of sentence, in part, as to his conviction for unlawful
taking and affirmed his judgment of sentence, in part, as to the remaining two
convictions.3 Commonwealth v. Frazier, 2020 WL 1490937, at *1
(Pa. Super. Filed March 27, 2020) (unpublished memorandum). On August
19, 2020, our Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Frasier, 237 A.3d 984 (Pa. 2020). Appellant did
not seek discretionary review with the Supreme Court of the United States.
As such, Appellant’s judgment of sentence became final on November 17,
2020, upon expiration of the 90-day period in which to file a writ of certiorari.
See 42 Pa.C.S.A. § 9545(b)(3) (stating, “[a] judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of the time for seeking the review”); see also U.S. Sup. Ct. R.
13(1) (stating, “[a] petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review”).
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3 In light of its disposition, this Court did not remand the case to the trial court
for resentencing because “the [t]heft sentence was imposed to run
concurrently with the sentence for [a]ggravated [a]ssault. Hence, vacating
the judgment of sentence for [t]heft does not affect the overall sentencing
scheme.” Frasier, 2020 WL 1490937, at *5.
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On March 18, 2021, Appellant filed pro se the instant PCRA petition, his
first. On March 23, 2021, the PCRA court appointed Kristen Weisenberger,
Esquire (“Attorney Weisenberger”) to represent Appellant. On May 14, 2021,
Attorney Weisenberger filed a motion to withdraw as counsel that contained
averments constituting a Turner/Finley “no-merit” letter.4 Motion to
Withdraw, 5/14/21. Attached as an exhibit to Attorney Weisenberger’s motion
to withdraw was a letter directed to Appellant setting forth the issues for which
Appellant requested review, counsel’s determination, after review of those
issues, that Appellant’s claims were without merit, and explaining, in summary
form, the reasons why the claims were without merit. Id. at Exhibit A. The
letter stated that a copy of the motion to withdraw, which included averments
constituting a Turner/Finley “no-merit” letter, was enclosed. Id. Attorney
Weisenberger also advised Appellant that he could proceed pro se or retain
private counsel. Id. On May 17, 2021, Appellant filed pro se a copy of a letter
directed to Attorney Weisenberger requesting that Attorney Weisenberger file
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4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); see also
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998). The averments
contained within Attorney Weisenberger’s motion to withdraw detailed “the
nature and extent of counsel's diligent review of the case, list[ed] the issues
which the petitioner wants to have reviewed, explain[ed] why and how those
issues lack merit, and request[ed] permission to withdraw.” See Motion to
Withdraw, 5/14/21, at ¶¶16-44. Ultimately, Attorney Weisenberger
determined that Appellant’s claims were without merit. Id. at ¶15. Although
a Turner/Finley “no-merit” letter is typically a separate document directed
to the PCRA court’s attention, the PCRA court determined that Attorney
Weisenberger’s inclusion of the “no-merit” letter within the motion to withdraw
met the requirements of Turner, supra, and Finley, supra.
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an amended PCRA petition raising claims, as set forth in the letter, that were
in addition to those already raised in Appellant’s pro se PCRA petition. In his
letter, which was dated May 12, 2021, and filed May 17, 2021, Appellant did
not acknowledge receipt of Attorney Weisenberger’s prior correspondence to
him, including the motion to withdraw.
Satisfied that Attorney Weisenberger fulfilled the requirements of
Turner, supra, and Finley, supra, the PCRA court granted Attorney
Weisenberger’s motion to withdraw and provided Appellant notice, pursuant
to Pa.R.Crim.P. 907, of its intent to dismiss Appellant’s petition within 30 days.
PCRA Court Order, 5/24/21. On June 16, 2021, Appellant filed pro se his
objection to Attorney Weisenberger’s motion to withdraw. See Appellant’s
Objection to PCRA Counsel’s Turner/Finley Letter, 6/16/21. As part of his
objection, Appellant stated that Attorney Weisenberger abandoned him and
he requested the appointment of new counsel. Id. at 6. On June 23, 2021,
the PCRA court dismissed Appellant’s petition. This pro se appeal followed.5
Appellant raises, pro se, the following issues for our review:
1. Did the PCRA court err in failing to consider Appellant's pro
se [] objection to PCRA counsel's [Turner/Finley
“no-merit” letter] concerning Appellant's ineffective
assistance of trial counsel claim where trial counsel failed to
request recusal of [the trial court] where the ruling of the
[trial] court appeared to be bias[?]
2. Did the PCRA court err in failing to consider [Appellant’s] pro
se [] objection to PCRA counsel's [Turner/Finley
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5 Both Appellant, pro se, and the PCRA court complied with Pa.R.A.P. 1925.
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“no-merit” letter] concerning [the] trial court's abuse of
[discretion] where the trial court failed to recuse itself
[when] there was [a foreseeable] conflict of interest[?]
3. Did the PCRA court err in failing to consider Appellant's pro
se [] objection to PCRA counsel's [Turner/Finley
“no-merit” letter] concerning due process violation(s) where
trial counsel failed to file [a] pre[-]trial motion[] to obtain
vital information concerning the victim's drug abuse and
mental health to mount a proper defense[?]
Appellant’s Brief at 2 (extraneous capitalization omitted).6
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6 We note that an indigent PCRA petitioner has a rule-based right to the
appointment of counsel for his first PCRA petition and, generally, this right to
representation includes an appeal from the disposition of that first PCRA
petition. See Pa.R.Crim.P. 904(C) (stating that, “when an unrepresented
defendant satisfies the [trial court] that the defendant is unable to afford or
otherwise procure counsel, the [trial court] shall appoint counsel to represent
the defendant on the defendant's first petition for post-conviction collateral
relief”); see also Pa.R.Crim.P. 904(F)(2) (stating that, when counsel is
appointed, “the appointment of counsel shall be effective throughout the
post-conviction collateral proceedings, including any appeal from disposition
of the petition for post-conviction collateral relief”). This Court has long-held,
however, that,
when counsel has been appointed to represent a petitioner in
post-conviction proceedings as a matter of right under the rules
of criminal procedure and when that right has been fully vindicated
by counsel being permitted to withdraw under the procedure
authorized in [Turner, supra, and Finley, supra,] new counsel
shall not be appointed and the petitioner, or appellant, must
thereafter look to his or her own resources for whatever further
proceedings there might be.
Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (emphasis
added). Our continued reliance on the rule set forth in Maple, supra, has
recently been called into question by our Supreme Court in Commonwealth
v. Bradley, 261 A.3d 381 (Pa. 2021). The Bradley Court, overruling prior
case law, held that a PCRA petitioner is permitted to raise claims of ineffective
assistance of PCRA counsel at the first opportunity, even if that opportunity is
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In addressing Appellant’s issues, we are mindful of our well-settled
standard and scope of review of a PCRA court’s dismissal of a PCRA petition.
Proper appellate review of a PCRA court’s dismissal of a petition is limited to
the examination of “whether the PCRA court’s determination is supported by
the record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted). “This Court grants great deference to the findings of the PCRA court,
and we will not disturb those findings merely because the record could support
a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140
(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s
legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
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the appeal of the PCRA court order denying the petition. Bradley, 261 A.3d
at 405. In so holding, the Bradley Court recognized that its
holding - permitting an appellant to raise ineffective assistance of PCRA
counsel claims on appeal - leaves open the question of whether an appellant
has a right to the appointment of new PCRA counsel on appeal when the PCRA
court accepted original PCRA counsel’s Turner/Finley “no-merit” letter,
permitted original PCRA counsel to withdraw, and, ultimately, dismissed
Appellant’s first PCRA petition. Bradley, 261 A.3d at 401 n.16. Because the
procedural posture of Bradley, supra, did not involve “the distinct
Turner/Finley scenario,” the Bradley Court “saved resolution of this
question . . . for another day.” Id. Thus, the rule set forth in Maple, supra,
remains intact, and, in the case sub judice, Appellant was not entitled to the
appointment of new PCRA counsel. Maple, 559 A.2d at 956.
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Appellant’s claims on appeal allege that the PCRA court erred in failing
to consider his objections to Attorney Weisenberger’s Turner/Finley
“no-merit” letter. These claims rest on Appellant’s contention that trial
counsel was ineffective in failing to request recusal of the trial court and in
failing to file a pre-trial motion seeking discovery of the victim’s purported
drug abuse and mental health history.7 Appellant’s Brief at 5-9.
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel's
alleged ineffectiveness. To overcome this presumption, a
petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel's deficient performance, that is, a
reasonable probability that but for counsel's act or omission, the
outcome of the proceeding would have been different. A PCRA
petitioner must address each of these prongs on appeal. A
petitioner's failure to satisfy any prong of this test is fatal to the
claim.
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7 We recognize that Appellant’s second issue – the failure of the trial court to
recuse itself from Appellant’s case – does not raise a claim of ineffective
assistance of counsel. Moreover, a review of Appellant’s brief demonstrates
that he abandoned this issue on appeal for failure to set forth an argument
with citation to appropriate legal authority. See Pa.R.A.P. 2119(a) (requiring
the argument section of an appellate brief to be divided into any may parts as
there are questions to be argued with “such discussion and citation of
authorities as are deemed pertinent”); see also Commonwealth v. Knox,
50 A.3d 732, 748 (Pa. Super. 2012) (reiterating that failure to develop
argument with citation to appropriate legal authority may constitute waiver of
issue), appeal denied, 69 A.3d 601 (Pa. 2013). Nonetheless, when read in
conjunction with Appellant’s first issue – a failure of trial counsel to request
recusal of the trial court – we find that the first and second issue are
sufficiently interrelated such that we will address both within the context of
an ineffectiveness claim.
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Commonwealth v. Reid, 259 A.3d 395, 405 (Pa. 2021) (citations and
quotation marks omitted). “Arguable merit exists when the factual statements
are accurate and could establish cause for relief.” Commonwealth v.
Barnett, 121 A.3d 534, 540 (Pa. Super. 2015) (citation and original quotation
marks omitted), appeal denied, 128 A.3d 1204 (Pa. 2015), cert. denied, 578
U.S. 1014 (2016).
Here, Appellant baldly asserts that, prior to his prosecution for the
underlying offenses, the trial court presided over a judicial matter involving
the victim in the case sub judice and that the trial court’s “familiarity” with the
victim “gave a semblance of impropriety.” Appellant’s Brief at 5-6. Appellant
argues that because the trial court was “familiar” with the victim, the trial
court was unable to adjudicate Appellant’s matter in a fair and impartial
manner. Id. at 6. In turn, Appellant asserts that “trial counsel was ineffective
for failing to request recusal of [the trial court] where the [non-jury verdict
convicting Appellant of the aforementioned crimes] appeared to be bias.” Id.
at 5.
The PCRA court found that Appellant’s claim of ineffective assistance of
counsel for failure to request recusal of the trial court lacked arguable merit
because the underlying claim asserting grounds for the trial court’s recusal
was meritless. PCRA Court Memorandum Order, 7/22/21, at 3. In so finding,
the PCRA court explained,
[Appellant] contends that [the trial] court should have recused
itself because it sentenced the victim [in a prior unrelated matter].
As a way ·of background, and adequately set forth by PCRA
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counsel, on August 8, 2019, the victim entered a plea of guilty to
possession of drug paraphernalia [in magisterial district court] and
was sentenced to pay fines and costs within 30 days. Upon failure
to do so, her case was sent to [the Court of Common Pleas of
Dauphin County] for supervision and collection. On January 22,
2019, the victim appeared before [the trial] court and was
sentenced to serve 3 to 12 months[’ incarceration] in [the]
Dauphin County Prison. On March 11, 2019, [the] Dauphin
County adult probation [office] issued a second detainer against
the victim. On April 16, 2019, the victim appeared before [the
trial] court and was sentenced to serve 6 to 12 months[’
incarceration] in [the] Dauphin County Prison.
. . . There was no bias by [the trial] court merely because it
sentenced the victim in a revocation proceeding. There is no
evidence to suggest that [the trial] court was incapable of being
fair and impartial. Thus, this allegation is without merit.
Id. (extraneous capitalization omitted).
“[A] party must seek recusal of a jurist at the earliest possible moment,
i.e., when the party knows of the facts that form the basis for a motion to
recuse[, otherwise,] the party's recusal issue is time-barred and waived.”
Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017). An appellate court reviews
the denial of a motion to recuse for abuse of discretion. Id. at 389. Courts
have long-held that “[t]he charge of disqualification is serious, and should not
be made lightly or frivolously.” In re Crawford’s Estate, 160 A. 585, 587
(Pa. 1931). “[A] party seeking to compel a judge's disqualification must
produce evidence establishing bias, prejudice[,] or unfairness which raises a
substantial doubt as to the jurist's ability to preside impartially.”
Commonwealth v. Bonds, 890 A.2d 414, 419 (Pa. Super. 2005) (citation
and original quotation marks omitted) (recognizing that our jurists are
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presumed “honorable, fair[,] and competent”), appeal denied, 906 A.2d 537(Pa. 2006).
A review of the record demonstrates that Appellant, following a colloquy
by the trial court, waived his right to a trial by jury. N.T., 4/22/19, at 5-7.
Appellant makes only bald assertions that because the trial court had prior
interaction with the victim as a defendant in an unrelated criminal matter, this
prior interaction caused the trial court to exhibit bias and impartiality towards
Appellant. We are unconvinced that Appellant’s bald assertions and
conjecture give rise to evidence establishing substantial doubt in the trial
court’s ability to preside impartially. If individuals are regular participants in
the criminal justice system, it is perceivable that jurists would be “familiar”
with those individuals. This “familiarity” does not, without more, give rise to
reasons to compel the recusal of the trial court. See, e.g., Commonwealth
v. Perry, 364 A.2d 312, 318 (Pa. 1976) (stating, “the acquaintance between
a judge and a victim of a crime, is not, in itself, sufficient to require the trial
judge to recuse”). As such, we find that the underlying issue surrounding the
necessity of the trial court to recuse itself from Appellant’s case to be without
arguable merit. As Appellant failed to demonstrate arguable merit in the
underlying claim, he cannot demonstrate arguable merit in his ineffectiveness
claim based upon the recusal issue. Therefore, we discern no abuse of
discretion or error of law in the PCRA court’s determination that Appellant is
not entitled to collateral relief based upon the claim that trial counsel was
ineffective for failing to request recusal of the trial court.
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In his final issue, Appellant contends that trial counsel was ineffective in
failing to file a pre-trial motion to obtain records of the victim’s purported prior
drug abuse and mental health issues. Appellant’s Brief at 6-8. Appellant
asserts that his due process rights were violated because trial counsel failed
to obtain the victim’s records. Id. at 8. In particular, Appellant contends that
“had it been made known to Appellant about the history of the victim” then
“he would have accepted the plea bargain.” Id.
When a PCRA petition seeks collateral relief on the basis that ineffective
assistance of counsel caused the petitioner to reject a guilty plea, the
petitioner must demonstrate that
[b]ut for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the
[trial] 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 [trial] 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.
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (citation
and original brackets omitted), appeal denied, 140 A.3d 13 (Pa. 2016).
Here, a review of the record demonstrates that Appellant testified at
trial that, prior to the altercation between he and the victim, which led to the
aforementioned charges, he had concerns that the victim was using drugs.
N.T., 4/22/19, at 73. As such, prior to the incident, Appellant was aware of
the victim’s drug abuse. Not only was Appellant aware of the victim’s drug
use at the time of trial, it is unclear from a review of Appellant’s argument set
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forth in his appellate brief how or why confirmation of supposedly exculpatory
information such as the victim’s purported drug abuse and mental health
issues would have caused Appellant to plead guilty and elect not to proceed
with trial. Therefore, Appellant’s ineffectiveness claim is without arguable
merit since he failed to demonstrate how knowledge of the relevant
information would have caused him to accept the plea offer. Consequently,
we discern no error of law or abuse of discretion in the PCRA court’s dismissal
of Appellant’s petition on this ground.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/08/2022
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