Com. v. Henderson, A. ( 2018 )

J-S75006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTHUR LAMONT HENDERSON :
:
Appellant : No. 137 WDA 2017
Appeal from the PCRA Order January 6, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001873-2012,
CP-02-CR-0001874-2012
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 05, 2018
Arthur Lamont Henderson (“Appellant”) appeals pro se from the order
denying his petition filed under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541–9546. We affirm.
We rely on the PCRA court’s statement for the underlying facts and
procedural history. PCRA Court Opinion, 5/23/17, at 1–7. In sum, following
a trial in February of 2013, a jury convicted Appellant on fifty-three counts
related to his sexual assault of three women on January 7 and January 9,
2012. The trial court sentenced Appellant to incarceration for an aggregate
term of sixty-one to 122 years. Appellant filed timely post-sentence
motions, which the trial court denied on July 9, 2013. This Court affirmed
the judgment of sentence, and the Pennsylvania Supreme Court denied
further review. Commonwealth v. Henderson, 116 A.3d 699, 1155 WDA
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2013 (Pa. Super. filed December 23, 2014), appeal denied, 125 A.3d 1199(Pa. 2015).
Appellant filed a timely pro se PCRA petition on February 16, 2016.
Following the permitted withdrawal of two appointed attorneys, the PCRA
court independently reviewed the record and, on August 31, 2016, gave
notice of its intent to dismiss Appellant’s petition. The PCRA court dismissed
the petition without a hearing on January 10, 2017. This appeal followed.
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following questions for our review:
I. Did PCRA court abuse its discretion when denying
[Appellant’s] motion to recuse/disqualification allowing the
court’s bias/prejudice to influence outcome of PCRA action.
Judge Donna Jo McDaniel who is named in an action where
the probability of actual bias on the part of the judge is
subjective and will affect a neutral two-part irreconcilable
role as an accused and the deciding authority?
II. Did PCRA court err when failing to address amended claim
of government interference related to [Appellant’s] PCRA
petition filed with court of records when [Appellant]
complained of transcripts missing and replaced from
Exhibit B2 related to issue IV of partiality towards the
Commonwealth claim in PCRA petition and petition was
never scanned or hard copy available in court of records?
III. Did PCRA court err when not addressing amended claim of
obvious or structral [sic] error in [Appellant’s] response to
intent to dismiss motion of ex-parte conversation at
[Appellant’s] waiver of counsel colloquy proceedings?
IV. Did PCRA court err when failing to address amended claim
of conflict of interest in [Appellant’s] response to intent to
dismiss when conflict of public defender’s office denied
[Appellant] of appellate review on direct appeal due to
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defective brief filed by [appellate] counsel from public
defender’s office?
V. Did PCRA court abuse its discretion and err when not
addressing issue IV in [Appellant’s] PCRA petition where
[Appellant] was denied new trial counsel due to partiality
towards the Commonwealth when issue was properly
preserved and presented to PCRA court and where merits
of issue has never been adjudicated?
VI. Did the PCRA court abuse its discretion and err when
failing to transmit Appellant’s original certified PCRA
petition?
VII. Did PCRA court abuse its discretion and err when failing to
follow Turner/Finley procedure allowing counsel to
withdraw and dismissing PCRA petition when counsel failed
to address issue IV of partiality towards the
Commonwealth in PCRA petition?
VIII. Did PCRA court err and abuse its discretion by failing to
find pre-trial counsel ineffective for failing to conduct a
meaningful pre-trial investigation, to fully pursue
discovery, and by failing to object to Brady violation?
IX. Did PCRA court err and abuse its discretion by failing to
find stand-by counsel ineffective for preventing [Appellant]
from conducting his own defense, participating in ex-parte
conversations without informing pro se defendant and
making critical decisions without [Appellant’s] knowledge?
X. Did PCRA court err and abuse its discretion by failing to
find appellate counsel ineffective for filing defective brief
on direct appeal which denied [Appellant] appellate review
on a [sic] issue properly preserved for appellate review
and for failure to raise obvious or structural errors on
appeal under separate headings?
XI. Did PCRA court err and abuse its discretion by failing to
find PCRA counsel ineffective for failing to thoroughly
investigate [Appellant’s] issues on their merits, failure to
address issue IV in PCRA petition violating Turner/Finley
procedure, and failure to recognize constitutional violations
of [Appellant’s] rights and revoking [Appellant’s] right to
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appointed PCRA representation on first collateral review
violating Rule 904(c) of the Pennsylvania Rules of Criminal
Procedure?
Appellant’s Brief at 6–7 (full capitalization omitted; issues reordered for ease
of disposition).
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
In the first seven issues, Appellant raises claims of error by the
Honorable Donna Jo McDaniel, who served as both the trial judge and the
PCRA judge. Specifically, Appellant complains that Judge McDaniel erred by:
denying his motion for recusal; failing to address his claims of government
interference, stand-by counsel’s ex parte conversation, the public defender’s
conflict of interest, and partiality toward the Commonwealth; failing to
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transmit his PCRA petition; and failing to follow the Turner/Finley1
procedure for withdrawal of counsel.
In Question I, Appellant complains that the PCRA court erred in
refusing to recuse itself, thereby “allowing the court’s bias/prejudice to
influence [the] outcome of [the] PCRA action.” Appellant’s Brief at 6, 22.
According to Appellant, Judge McDaniel participated in “ex-parte
communications and collaborative efforts with the prosecution and standby
counsel along with other governmental officers.” Id. at 23. Appellant
concludes that Judge McDaniel “held two incompatible roles: that of arbiter
and that of adversary. Therefore, [her] recusal was required in order to
protect [Appellant’s] due process right to a fair post-conviction review.” Id.
at 24.
The Commonwealth retorts, “Appellant has not shown that a single
one of the judge’s trial rulings was motivated by bias against him.
Moreover, he has not shown that any of her rulings were incorrect, much
less that they prejudiced him.” Commonwealth’s Brief at 48.
“A party that seeks recusal of a judge bears the burden to produce
evidence establishing bias, prejudice, or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.”
Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (internal
____________________________________________
1
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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citations and quotation marks omitted). In reviewing a recusal issue, “[o]ur
function ... is to determine whether the proceedings before the PCRA court
were fair and impartial.” Reilly by Reilly v. Septa, 489 A.2d 1291, 1300
(Pa. 1985). If the proceedings before the PCRA court meet these criteria,
then the alleged disqualifying factors of the trial judge become moot. Id.We further note that a judge’s participation in a PCRA petitioner’s underlying
criminal action is generally not grounds for recusal in any ensuing PCRA
proceedings:
Pennsylvania law makes clear that it is generally preferable
for the same judge who presided at trial to preside over the
post-conviction proceedings. Familiarity with the case will likely
assist the proper administration of justice. Only where it is
adequately demonstrated that the interests of justice warrant
recusal, should a matter be assigned to a different judge.
Commonwealth v. Lambert, 765 A.2d 306, 362 (Pa. Super. 2000)
(citations and quotation marks omitted); Hutchinson, 25 A.3d at 319.
In disposing of the recusal issue, the PCRA court opined as follows:
[Appellant] avers that this [c]ourt erred in denying his Motion for
Recusal on the PCRA proceedings on the basis that this [c]ourt
was “named in an action where the probability of actual bias on
the part of the judge is subjective and will affect a neutral two-
part irreconcilable role as an accused and the deciding
authority.” ([Appellant’s] Rule 1925(b) Concise Statement of
Errors Complained of on Appeal, p. 4).
The Appellate Court’s “standard of review of a trial court’s
determination not to recuse from hearing a case is exceptionally
deferential. The appellate court recognizes that our trial judges
are ‘honorable, fair and competent’ and although the appellate
court employs an abuse of discretion, it does so recognizing that
the judge himself is best qualified to judge his ability to preside
impartially... It is the burden of the party requesting recusal ‘to
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produce evidence establishing bias, prejudice or unfairness
which raises a substantial doubt as to the jurist’s ability to
preside impartially.’” Commonwealth v. Harris, 979 A.2d 387,
391-[39]2 (Pa. Super. 2009).
On April 14, 2016, after this [c]ourt had both denied
[Appellant’s] Motion for Recusal and appointed Suzanne Swan,
Esquire to represent [Appellant] in his PCRA proceedings,
[Appellant] attempted to file a private criminal complaint naming
this [c]ourt, Attorney Narvin and former Assistant District
Attorney Laura Ditka, Esquire. The private criminal complaint
sought to raise a claim of “Obstruction Administration of Law or
other government functions” pursuant to 18 Pa.C.S.A. §51056 on
the basis of the previously-referenced events at the conclusion of
the waiver of counsel hearing, and also named Allegheny County
Executive Rich Fitzgerald, the U.S. Attorney’s Office, the
Pennsylvania Attorney General’s Office, the Honorable Jeffrey
Maning [sic], Public Defender Elliott Howsie, Esquire, the
Allegheny County Office of Conflict Counsel and the United
States Civil Rights Exploitation and Corruption Section as “in-
concert parties” who all broke state and Federal laws during the
waiver of counsel hearing. Not surprisingly, [Appellant’s] private
criminal complaint was not accepted by the Assistant District
Attorney on duty at the Municipal Court. Thereafter, [Appellant]
again sought prosecution by mailing his private criminal
complaint directly to Allegheny County District Attorney Steven
Zappala, Jr. Again, the complaint was not accepted.
6
18 Pa.C.S.A. §5105 actually concerns Hindering
Apprehension or Prosecution.
[Appellant] is not able to force recusal of a judge by
attempting to file falsified and improper claims against the judge
and then using that attempt (which he incorrectly characterized
as a pending case) as the basis for recusal. The logic is both
circular and faulty. As has been repeatedly stated, this [c]ourt
went to great lengths to ensure that [Appellant] received a fair
trial and the fact that he was convicted is not reflective [of] any
bias or prejudice on behalf of this [c]ourt. [Appellant] was
convicted because he was guilty. [Appellant’s] attempt to
manufacture a claim of bias with his concocted private criminal
complaint is both offensive and meritless. This claim must also
fail.
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PCRA Court Opinion, 5/23/17, at 16–17 (original brackets omitted).
Having reviewed the certified record, we conclude that Appellant has
not produced evidence establishing bias, prejudice, or unfairness, which
raises a substantial doubt as to Judge McDaniel’s ability to preside
impartially as the PCRA jurist. Hutchinson, 25 A.3d at 319. Indeed, the
PCRA proceedings before Judge McDaniel were fair and impartial, and,
having served as the trial judge, Judge McDaniel’s familiarity with the case
assisted the proper administration of justice. Lambert, 765 A.2d at 362.
Thus, we discern no abuse of Judge McDaniel’s discretion in refusing
Appellant’s recusal request. Moreover, given Appellant’s attempt to compel
Judge McDaniel’s recusal by filing an unsubstantiated private criminal
complaint, his claim of error is disingenuous.
In Questions II, III, and IV, Appellant complains that the PCRA court
failed to address several “amended” claims raised in his response to the
PCRA court’s notice of intent to dismiss. Appellant’s Brief at 17, 27, 34.2
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2
The PCRA court succinctly disposed of the issues regarding its failure to
address certain PCRA claims:
[Appellant] also avers that this [c]ourt erred in failing to
“address” his PCRA claims. As discussed above and below, this
[c]ourt has extensively “addressed” [Appellant’s] PCRA claims
and found them to be utterly without merit. There is simply no
basis for his claim that they were not addressed; this 19 page
Opinion is direct evidence to the contrary. This claim is
meritless.
(Footnote Continued Next Page)
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Relying on Rykard, 55 A.3d 1177, the Commonwealth contends that
Appellant waived these issues:
[Appellant], in his response to the trial court’s notice of intention
to dismiss his PCRA petition, purports to raise three (3) issues
which were not contained in his pro se petition. They were (1)
“Government interference”; (2) “Obvious or Structural Error”;
and (3) “Conflict of Interest.”
Under the law of this Commonwealth, such issues have
been waived. As this Court has held, in order to preserve a new,
non-PCRA counsel ineffectiveness claim for appeal, a petitioner
must seek leave to amend his post- conviction [sic] collateral
petition. It is not sufficient merely to include the claims in one’s
response to the court’s notice of intention to dismiss.
Commonwealth’s Brief at 50 (internal citation omitted).
Appellant responds that he “specifically ask[ed] to amend [his] PCRA
petition as pro se litigant to protect claims and issues for appellate review.”
Appellant’s Brief at 1. Therefore, Appellant asserts, “[t]he PCRA court
should have addressed [his] amended claims on their merits.” Id. at 1–2.
We have explained that a Pa.R.Crim.P. 907 pre-dismissal notice
affords a petitioner the opportunity to seek leave to amend his petition and
correct any material defects. Rykard, 55 A.3d at 1189 (citing
Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999)). However, we
clarified that a petitioner’s prerogative to respond to a PCRA court’s Rule 907
notice is not analogous to an amended PCRA petition, which is subject to
_______________________
(Footnote Continued)
PCRA Court Opinion, 5/23/17, at 18.
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either the PCRA time bar or the PCRA court’s express grant of relief under
Pa.R.Crim.P. 905(A). Rykard, 55 A.3d at 1189.
Specifically, we stated the following:
[Pa.R.Crim.P.] 907, which provides the requirement of a notice
of intent to dismiss and allows for the optional filing of a
response, states that a PCRA court may dismiss a petition, grant
leave to file an amended petition, or direct that proceedings
continue twenty days after the date of the notice of dismissal,
including if a defendant responds to the dismissal. The rule
does not treat a response to its notice of dismissal as
either an amended petition or a serial petition.
Rykard, 55 A.3d at 1187 (emphasis added).
Here, Appellant raised “amended claim[s]” in his response to the PCRA
court’s notice of intent to dismiss. Petitioner’s Response to Intent to Dismiss
PCRA, 9/21/16, at 15–19. Although Appellant requested permission to
amend his PCRA petition to include these new claims, the PCRA court did not
grant him permission. Consequently, we agree with the Commonwealth that
Appellant’s three “failed to address” issues are waived. Accord Rykard, 55
A.3d at 1192 (explaining that response to notice of dismissal is neither
amended petition nor serial petition); see also Williams, 732 A.2d at 1191
(“The assertion of a new claim after the court has heard argument and
indicated its intent to dismiss the petition militates in favor of the decision to
deny leave to amend.”).
In Question V, Appellant essentially complains that the PCRA court
erred in failing to address Issue IV of his pro se PCRA petition. Appellant’s
Brief at 24. Issue IV reads as follows:
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(IV) The entire trial process was fundamentally flawed where
the trial court, by invoking its personal bias and prejudice,
denied Petitioner new counsel, shown partiality towards the
Commonwealth, and repeatedly made rulings in Petitioner’s
absence depriving him of his fundamental right to be present
during every stage in violation of the Fourth, Sixth and
Fourteenth Amendments to be tried before an impartial judge[.]
Petition for Post-Conviction Relief, 2/6/16, at ¶ 8(IV).
Although the PCRA court did not specifically address Issue IV of
Appellant’s petition, it did refer to Appellant’s claims of bias and partiality.
The PCRA court opined:
Rather than admitting that he received a fair trial and was
convicted, [Appellant] asserts that this [c]ourt was biased
against him. Rather than admitting that his claim of bias lacked
merit, he asserts that his lawyer wrote a bad brief.
The Superior Court has already reviewed the record of the
trial and determined that [Appellant] received a fair and just trial
with all the protections of due process. This [c]ourt was not
biased or prejudiced against [Appellant] and his repeated
assertions to the contrary are, frankly, offensive to this [c]ourt
and to the entire justice system. [Appellant] was convicted
because he was guilty. Appellate counsel was unable to provide
a legal analysis demonstrating this [c]ourt’s bias because there
was none - the fantasies and delusions of [Appellant]
notwithstanding.
PCRA Court Opinion, 5/23/17, at 15.
As for Appellant’s specific complaint about the denial of his request for
new counsel, the direct-review panel disposed of this issue:
Upon review, we conclude that the trial court’s decision to deny
Appellant’s requests for new counsel was fully within its
discretion, and we decline to grant Appellant relief on this basis.
Appellant’s request at issue was made after jury selection and
sought new appointed counsel, not substitution of counsel of his
choosing at his own expense. Moreover, contrary to Appellant’s
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assertion, defense counsel was indeed prepared for trial. The
trial court determined that Appellant failed to set forth a
legitimate reason for appointing new counsel. Therefore,
Appellant’s request was properly denied. See e.g.
Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super.
2007) (citation omitted) (holding that “‘substantial reasons’ or
‘irreconcilable differences’ warranting appointment of new
counsel are not established where the defendant merely alleges
a strained relationship with counsel, where there is a difference
of opinion in trial strategy, where the defendant lacks confidence
in counsel’s ability, or where there is brevity of pretrial
communications”); see also Pa.R.Crim.P. 122(C). In addition,
the trial court properly colloquied Appellant on his request for
self-representation, then permitted Appellant to proceed pro se.
Accordingly, Appellant’s claim of trial court error fails[.]
Henderson, 116 A.3d 699, 1155 WDA 2013 (unpublished memorandum at
*14–15).
Regarding Appellant’s reference to the exchange among Judge
McDaniel, the prosecutor, and standby counsel in Appellant’s absence after
the waiver-of-counsel colloquy, we discern no basis for relief. In fact,
Judge McDaniel, the prosecutor, and standby counsel served Appellant’s
interests by clarifying his access to certain witnesses subpoenaed by the
Commonwealth. N.T., 2/4/13, at 17–19. Although their personal
assessments of Appellant’s ability to represent himself appear on the record,
nothing therein supports Appellant’s allegation that he was deprived “of his
fundamental right to be present during every stage in violation of the
Fourth, Sixth and Fourteenth Amendments to be tried before an impartial
judge.” Petition for Post-Conviction Relief, 2/6/16, at ¶ 8(IV).
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We reiterate that Appellant has not produced evidence establishing
Judge McDaniel’s bias, prejudice, or unfairness. Hutchinson, 25 A.3d at
319. Additionally, the certified record confirms that the PCRA proceedings
before Judge McDaniel were fair and impartial. Appellant’s contrary claim
lacks merit.
Appellant alleges in Question VI that the PCRA court erred in “failing to
transmit [A]ppellant’s original certified PCRA petition.” Appellant’s Brief at
19. We note that the PCRA court did not specifically address this claim.
However, the Commonwealth claims, and our review of the certified record
confirms, that Appellant’s PCRA petition is available for our review at Docket
Entry 46. Therefore, this allegation of error does not warrant relief.
Appellant’s seventh question contains his final allegation of judicial
error, i.e., the PCRA court failed to comply with the Turner/Finley
procedure for allowing counsel to withdraw. Appellant’s Brief at 33. The
PCRA court disposed of this claim as follows:
Finally, [Appellant] argues that this [c]ourt erred in “failing
to follow Turner/Finley procedure” in the dismissal of his pro se
PCRA Petition by not conducting its own independent review of
the Petition.
Again, [Appellant’s] claim fails without question, as this
[c]ourt did conduct its own independent review of the record
prior to dismissing the Petition. [Appellant] necessarily assumes
that it did not because relief was not granted, which is again
demonstrative of the faulty reasoning employed throughout the
Petition and the Concise Statement. That this [c]ourt did not
grant relief did not mean that it did not review the Petition;
rather, it meant that the claims were meritless and did not
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warrant collateral relief. [Appellant’s] wishing does not make it
so. This claim is also meritless.
PCRA Court Opinion, 5/23/17, at 18 (emphasis in original).
As stated above, we grant great deference to the PCRA court’s findings
that are supported in the record, and we will not disturb them unless they
have no support in the certified record. Rigg, 84 A.3d at 1084. Here, the
PCRA court assures us that it dismissed Appellant’s petition based on its
independent review of the record, including Appellant’s response to the PCRA
court’s notice of intent to dismiss. Order, 1/10/17. Appellant presents no
argument, let alone evidence of record, that undermines our deference to
the PCRA court’s supported findings and conclusion that Appellant is not
entitled to relief on his claims.
In his four remaining issues, Appellant challenges the effective
assistance of his pretrial, standby, appellate, and post-conviction counsel.
Pennsylvania jurists presume that a PCRA petitioner’s counsel was effective,
unless the petitioner proves otherwise. Commonwealth v. Williams, 732
A.2d 1167, 1177 (Pa. 1999). In such cases, we are bound by the PCRA
court’s credibility determinations where there is support for them in the
record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005)
(citation omitted). Furthermore, claims of ineffective assistance of counsel
(“IAC”) are not self-proving. Commonwealth v. Wharton, 811 A.2d 978,
986 (Pa. 2002). Consequently, our Supreme Court has explained that, in
order to succeed on an IAC claim, an appellant must demonstrate (1) that
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the underlying claim is of arguable merit; (2) that counsel’s performance
lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused
the appellant prejudice. Commonwealth v. Michael Pierce, 786 A.2d
203, 213 (Pa. 2001).
We reiterate that trial counsel cannot be deemed ineffective for failing
to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). Moreover, trial counsel’s approach must be
“so unreasonable that no competent lawyer would have chosen it.”
Commonwealth v. Ervin, 766 A.2d 859, 862–863 (Pa. Super. 2000)
(quoting Commonwealth v. Miller, 431 A.2d 233, 234 (Pa. 1981)). Our
Supreme Court has defined “reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Commonwealth v. Charles Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth v. Maroney, 235 A.2d 349, 352 (Pa. 1967)) (emphasis in
original; footnote omitted). Finally, prejudice requires proof that there is a
reasonable probability that, but for counsel’s error, the outcome of the
proceeding would have been different. Michael Pierce, 786 A.2d at 213.
“A failure to satisfy any prong of the ineffectiveness test requires rejection of
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the claim of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409,
419 (Pa. 2009) (citation omitted).
Appellant’s first IAC claim is against pretrial counsel. Appellant’s Brief
at 35. According to Appellant, pretrial counsel failed to investigate the case
and was not prepared for trial. Id. at 36.
Regarding this IAC claim, the PCRA court opined as follows:
Next, [Appellant] argues that “pretrial counsel” was
ineffective in failing to investigate expert witnesses and in being
unaware of exculpatory evidence that could have been the
subject of a suppression motion. Insofar as [Appellant] has failed
to specify which of his four (4) attorneys - all of whom
represented him before trial commenced - he considers to be
“pretrial counsel”, which expert witness(es)5 should have been
“investigated” or called to testify and what “exculpatory
evidence” counsel should have been aware of, [Appellant] has
utterly failed to present a reviewable claim. “When the trial court
has to guess what issues an appellant is appealing, that is not
enough for meaningful review”... “When an appellant fails to
adequately identify in a concise manner the issues sought to be
pursued on appeal, the trial court is impeded in its preparation of
a legal analysis which is pertinent to the issues”... “In other
words, a Concise Statement which is too vague to allow the
Court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all.” Commonwealth v.
Lemon, 804 A.2d 34, 37 (Pa.Super. 2002), internal citations
omitted. As this Court is unable to determine the basis for
[Appellant’s] claims of ineffectiveness against “pretrial counsel” -
or even the attorney(s) against whom they are being made - this
claim has been waived.
5
As it specifically relates to a claim for
ineffectiveness for the failure to call a witness, the
petitioner must establish that “(1) the witness
existed; (2) the witness was available to testify for
the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5)
the absence of the testimony of the witness was so
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prejudicial as to have denied the defendant a fair
trial.” Commonwealth v Matias, 63 A.3d 807, 810-
811 (Pa.Super. 2013).
PCRA Court Opinion, 5/23/17, at 13–14 (some internal quotation marks
omitted).
Upon review, we discern no abuse of the PCRA court’s discretion in
rejecting Appellant’s undeveloped claim against pretrial counsel as waived.
Contrary to Appellant’s assertion, he—not the PCRA court—is responsible for
providing the details of his claim, such as a particular counsel’s
ineffectiveness. Appellant’s Brief at 35–36. Additionally, we recall this
Court’s disposition of the underlying issue on direct appeal:
Appellant argues that the trial court abused its discretion by
failing to appoint new trial counsel where court-appointed
counsel refused to subpoena critical witnesses and was allegedly
unprepared for trial.
* * *
[C]ontrary to Appellant’s assertion, defense counsel was indeed
prepared for trial.
Henderson, 116 A.3d 699, 1155 WDA 2013 (unpublished memorandum at
*10, 15). In sum, Appellant’s IAC claim against pretrial counsel fails.
Next, Appellant complains that standby counsel was ineffective.
Appellant’s Brief at 37. According to Appellant, standby counsel “prevent[ed
Appellant] from conducting his own defense, participat[ed] in ex-parte
conversations without information pro se [Appellant] and [made] critical
decisions without [Appellant’s] knowledge.” Id. The Commonwealth retorts
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that, “having waived his right to counsel, [Appellant] has waived his right to
effective assistance of counsel.” Commonwealth’s Brief at 33.3 We agree.
In this case, Appellant waived his Sixth Amendment right to counsel
and, instead, chose to represent himself at trial.4 Our Supreme Court has
explained that:
[s]uch a choice is also guaranteed under the Sixth
Amendment…. The self-representation choice, however, is not
without consequences, including that a defendant who knowingly
and intelligently waives his right to counsel and represents
himself at trial cannot later seek to revive defaulted trial claims
by alleging his own ineffectiveness or the ineffectiveness of his
standby counsel.
Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014) (citations
omitted). Moreover, “any potential layered claim of counsel ineffectiveness
covering trial and appeal is unavailable because [A]ppellant exercised his
constitutional right to represent himself at trial.” Id. Applying Blakeney,
we conclude that “Appellant’s post-conviction attempt to challenge standby
counsel’s effectiveness at trial . . . is not cognizable.” Id. at 756–757.
____________________________________________
3
In rejecting this IAC claim, the PCRA court stated, “[Appellant’s] current
claims against [standby counsel] as they relate to both [standby counsel’s]
speaking outside [Appellant’s] presence and in failing to inform him of what
[Appellant] later perceived as this [c]ourt’s bias are both entirely without
merit. This claim must fail.” PCRA Court Opinion, 5/23/17, at 13.
4
We upheld the validity of Appellant’s decision to represent himself at trial.
Henderson, 116 A.3d 699, 1155 WDA 2013 (unpublished memorandum at
*10–15).
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Appellant levels his third IAC claim against appellate counsel, who,
Appellant asserts, filed “a defective brief on direct appeal.” Appellant’s Brief
at 26. Due to Appellant’s lack of clarity in presenting this issue, we rely on
the PCRA court’s well-reasoned analysis, which we adopt as our own:
Next, [Appellant] argues that appellate counsel was
ineffective in filing a defective appellate brief[,] which led the
Superior Court to determine one of his appellate claims had been
waived. Again, this claim is meritless.
On his direct appeal, [Appellant] sought to raise a claim of
bias by this Court. However, other than citing “a list of
circumstances which allegedly support his allegation that the
trial court was partial towards the Commonwealth” (Superior
Court Opinion, December 23, 2014, 1155 WDA 2013, p. 17),
[Appellant] failed to cite any relevant case law or provide an
analysis applying that law to the facts of the case. As such, the
Superior Court deemed the issue waived.
It is clear to this Court that appellate counsel raised the
claim of bias upon [Appellant’s] insistence, and to save himself
from [Appellant’s] later claim that he failed to do [Appellant’s]
bidding (as [Appellant]has now claimed against his various other
attorneys). It is further clear to this [c]ourt - having provided
[Appellant] with a fair trial - that counsel included the allegations
in the brief as directed but was unable to provide a meaningful
legal analysis of the claim of bias since it did not exist. However,
rather than accepting the Superior Court’s determination that
[Appellant’s] allegations as presented do not support a legal
analysis and are not indicative of a claim of judicial bias,
[Appellant] presumes that the fault must lie with his attorney for
filing a “defective” brief.
[Appellant’s] failure to accept the Superior Court’s
determination and instead blame his attorney is completely
demonstrative of his conduct throughout the trial and his utter
refusal to take responsibility for his actions. Rather than
admitting his guilt in raping three (3) women, he asserts that
they consented and enjoyed it.
* * *
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Appellate counsel was unable to provide a legal analysis
demonstrating this [c]ourt’s bias because there was none. . . .
Appellate counsel was not ineffective for writing a “defective”
brief when the claim of error did not exist. This claim must also
fail.
PCRA Court Opinion, 5/23/17, at 14–15. Upon review, we discern no abuse
of the PCRA court’s discretion in rejecting Appellant’s IAC claim against
appellate counsel.
Finally, Appellant challenges the representation of PCRA counsel.
Appellant’s Brief at 38.5 The crux of Appellant’s claims appears to be that
PCRA counsel “failed to address [A]ppellant’s claims of partiality towards the
Commonwealth in his no-merit letter, and [A]ppellant’s claim of obvious
and/or structural error.” Id. at 42. Again, given Appellant’s lack of clarity in
presenting this issue, we rely on the PCRA court’s analysis:
Next, [Appellant] raises five (5) claims of ineffective
assistance of PCRA counsel, for his failure to file an Amended
Petition including each of the five (5) issues identified in his pro
se Petition: the discussion following the waiver of counsel
hearing; the expert investigation and exculpatory evidence
issue; the “defective” appellate brief; the alleged prejudice of
this [c]ourt (all referenced above) and this [c]ourt’s failure to
recuse itself in the PCRA proceedings ... .
____________________________________________
5
Appellant preserved his IAC claims against PCRA counsel by raising them
in his response to the PCRA court’s notice of intent to dismiss Appellant’s
petition. Petitioner’s Response to Intent to Dismiss PCRA, 9/21/16, at 3–16.
Accord Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (“[I]n order for
a petitioner to preserve an ineffective assistance claim against his PCRA
counsel, he must either allege the claim in a serial PCRA petition or raise it
in response to the PCRA court’s notice of dismissal.”).
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As discussed extensively elsewhere in this Opinion, the
underlying claims of error are meritless. Accordingly, insofar as
counsel can never be found ineffective for failing to raise a
meritless claim . . . [PCRA counsel] will not be found ineffective
for failing to raise them in an Amended Petition. This claim is
also meritless.
PCRA Court Opinion, 5/23/17, at 15–16 (internal citation omitted).
Our review of the certified record confirms that it supports the PCRA
court’s findings and reveals no basis for disturbing the PCRA court’s
determination that Appellant’s IAC claims against PCRA counsel lack merit.
Accordingly, we discern no abuse of the PCRA court’s discretion in rejecting
these claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/05/2018
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