Com. v. Wilkinson, W. ( 2016 )


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  • J-S57011-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    WILLIAM WILKINSON
    Appellant                   No. 2369 EDA 2014
    Appeal from the PCRA Order July 21, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0010104-2007
    BEFORE: MUNDY, J., OTT, J., and STABILE, J.
    MEMORANDUM BY MUNDY, J.:                           FILED JANUARY 25, 2016
    Appellant, William Wilkinson, appeals from the July 21, 2014 order
    dismissing, without a hearing, his petition for relief filed pursuant to the Post
    Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           After careful
    review, we affirm.
    The PCRA court has fully and accurately recounted the factual history
    of this case in its opinion filed pursuant to Pennsylvania Rule of Appellate
    Procedure 1925(a). See PCRA Court Opinion, 11/24/14, at 2-6. Relevant to
    this appeal, we note the following pertinent facts.         Appellant and the
    complainant were involved in a romantic relationship and lived together. 
    Id. at 2.
       In December 2006, Appellant advised complainant that he was in
    financial difficulty and could not maintain the mortgage on his home and an
    agreement was reached where Appellant sold his house to complainant. 
    Id. J-S57011-15 On
    February 2, 2007, complainant prepared a will leaving her entire estate
    to her daughter. 
    Id. at 2-3.
    “Appellant cautioned [c]omplainant that if she
    were required to be admitted to a hospital or if she were committed to a
    mental institution she would loose [sic] control of everything[,]” and he
    persuaded her to transfer the $48,000.00 in her bank account to him for
    safekeeping, which he immediately deposited in his account at Commerce
    Bank.     
    Id. at 3.
      On February 4, 2007, complainant attempted suicide,
    leaving a note for Appellant to give everything to her daughter.          
    Id. Complainant was
    transferred to the hospital, then to a mental hospital for
    treatment, and ultimately released. 
    Id. Appellant then
    told complainant he
    was no longer permitted to be around her. 
    Id. Complainant never
    received
    her money back from Appellant despite requesting it on multiple occasions.
    
    Id. The PCRA
    court set forth the subsequent procedural history in its Rule
    1925(a) opinion, as follows.
    On April 3, 2007[,] Appellant was arrested and
    charged with Theft and Securing Execution of
    Documents by Deception and on April 22, 2008,
    following a jury trial … he was found guilty of those
    crimes.    On [] June 12, 2008[,] Appellant was
    sentenced to a term of imprisonment of not less than
    twenty-one (21) months nor more than four (4)
    years plus three (3) years’ probation for Theft, and a
    term of imprisonment of not less than one (1) year
    nor more than two years (2) for Execution of
    Documents by Deception. Post[-s]entence [m]otions
    were filed and on July 31, 2008[,] they were denied.
    Appellant filed a timely [n]otice of [a]ppeal to the
    Superior Court of Pennsylvania on August 20, 2008.
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    On October 14, 2011[,] the Superior Court of
    Pennsylvania      affirmed      the     [j]udgment    of
    [s]entence[, Commonwealth v. Wilkinson, 
    37 A.3d 1231
    (Pa. Super. 2011), appeal denied, 
    49 A.3d 443
    (Pa. 2012),] and on November 14, 2011[,]
    Appellant filed a [p]etition for [a]llowance of [a]ppeal
    in the Supreme Court of Pennsylvania. On August 8,
    2012[,] the Supreme Court of Pennsylvania denied []
    Appellant’s [p]etition for [a]llowance of [a]ppeal.
    On March 8, 2013[,] Appellant filed a [timely
    p]etition pursuant to the [PCRA] and on November
    14, 2013[,] the Commonwealth filed a [m]otion to
    [d]ismiss. [On May 2, 2014,] Appellant was given
    [n]otice pursuant to Pa.R.Crim.P. 907 of the [PCRA
    c]ourt’s intention to dismiss the PCRA [p]etition
    without a hearing and Appellant responded. On July
    [21], 2014[,] the PCRA [petition] was dismissed.
    
    Id. at 1-2
    (footnote omitted).
    On August 14, 2014, Appellant filed a timely notice of appeal. 1   On
    appeal, Appellant raises the following issues for our review.
    I. Was Appellant denied a legitimate opportunity to
    develop and present his claims under the Post-
    Conviction Collateral Relief Act when the [trial] court
    denied his petition without an evidentiary [hearing]?
    II. Was Appellant denied his Constitutional right to
    effective assistance of counsel when trial counsel
    failed to obtain copies of the complainant’s
    transcribed    testimony  from   previous    judicial
    proceedings for impeach[ment] purposes at trial?
    III. Was Appellant denied his Constitutional right to
    effective assistance of counsel when trial counsel
    failed to object to testimony elicited from Commerce
    ____________________________________________
    1
    Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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    Bank employees, Appellant’s former spouse, and his
    former girlfriend regarding matters that were unduly
    prejudicial and unrelated to the charges?
    IV. Was trial counsel ineffective when he failed to file
    a [m]otion to [d]ismiss under Rule 600 of the
    Pennsylvania Rules of Criminal Procedure when the
    Commonwealth failed to prosecute him within three
    hundred and sixty-five (365) days of his arrest in
    violation of his right to a speedy trial?
    V. Was Appellant denied his Constitutional right to
    effective assistance of counsel when Appellant was
    not informed of the use and importance of character
    testimony and his right to secure character witnesses
    for counsel to prepare and present during trial?
    Appellant’s Brief at 4-5.
    Our standard of review requires us to “examine whether the PCRA
    court’s determination is supported by the record and free of legal error.”
    Commonwealth v. Fears, 
    86 A.3d 795
    , 803 (Pa. 2014) (internal quotation
    marks and citation omitted). “The scope of review is limited to the findings
    of the PCRA court and the evidence of record, viewed in the light most
    favorable to the prevailing party at the trial level.”    Commonwealth v.
    Spotz, 
    84 A.3d 294
    , 311 (Pa. 2014) (citation omitted).       “It is well-settled
    that a PCRA court’s credibility determinations are binding upon an appellate
    court so long as they are supported by the record.”        Commonwealth v.
    Robinson, 
    82 A.3d 998
    , 1013 (Pa. 2013) (citation omitted). However, this
    Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
    v. Rigg, 
    84 A.3d 1080
    , 1084 (Pa. Super. 2014) (citation omitted).
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    Further, in order to be eligible for PCRA relief, a petitioner must plead
    and prove by a preponderance of the evidence that his conviction or
    sentence arose from one or more of the errors listed at Section 9543(a)(2)
    of   the   PCRA.    42   Pa.C.S.A.   §   9543(a)(2).    These   errors     include
    ineffectiveness of counsel. 
    Id. § 9543(a)(2)(ii).
    The issues raised in a PCRA
    petition must be neither previously litigated nor waived. 
    Id. § 9543(a)(3).
    Instantly, Appellant presents five claims for our review.        In his first
    claim, Appellant argues the PCRA court erred in dismissing his petition
    without an evidentiary hearing.      Appellant’s Brief at 19.    Our review is
    guided by the following.
    [T]he right to an evidentiary hearing on a post-
    conviction petition is not absolute. It is within the
    PCRA court’s discretion to decline to hold a hearing if
    the petitioner’s claim is patently frivolous and has no
    support either in the record or other evidence. It is
    the responsibility of the reviewing court on appeal to
    examine each issue raised in the PCRA petition in
    light of the record certified before it in order to
    determine if the PCRA court erred in its
    determination that there were no genuine issues of
    material fact in controversy and in denying relief
    without conducting an evidentiary hearing.
    Commonwealth v. Wah, 
    42 A.3d 335
    , 338 (Pa. Super. 2012), quoting
    Commonwealth v. Turetsky, 
    925 A.2d 876
    , 882 (Pa. Super. 2007)
    (citations omitted), appeal denied, 
    940 A.2d 365
    (Pa. 2007); see also
    generally Pa.R.Crim.P. 907. “We stress that an evidentiary hearing is not
    meant to function as a fishing expedition for any possible evidence that may
    support some speculative claim ….”       Commonwealth v. Roney, 79 A.3d
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    595, 604-605 (Pa. 2013) (citations and internal quotation marks omitted),
    cert. denied, Roney v. Pennsylvania, 
    135 S. Ct. 56
    (2014). We review a
    PCRA court’s decision to dismiss without a hearing for abuse of discretion.
    
    Id. at 604.
    Accordingly, we must examine Appellant’s four remaining issues
    asserting claims of ineffective assistance of counsel in light of the record
    before us. 
    Wah, supra
    . If Appellant has failed to raise a meritorious claim,
    then the PCRA court will not have abused its discretion in dismissing
    Appellant’s claim without a hearing. Likewise, if Appellant has raised a valid
    claim of ineffective assistance of counsel, we would remand for an
    evidentiary hearing.    Therefore, we proceed to address Appellant’s four
    claims of ineffective assistance of counsel.
    When reviewing a claim of ineffectiveness, we apply the following test,
    first articulated by our Supreme Court in Commonwealth v. Pierce, 
    527 A.2d 973
    (Pa. 1987).
    [C]ourts presume that counsel was effective, and
    place upon the appellant the burden of proving
    otherwise. Counsel cannot be found ineffective for
    failure to assert a baseless claim.
    To succeed on a claim that counsel was
    ineffective, Appellant must demonstrate that: (1) the
    claim is of arguable merit; (2) counsel had no
    reasonable strategic basis for his or her action or
    inaction; and (3) counsel’s ineffectiveness prejudiced
    him.
    …
    [T]o demonstrate prejudice, appellant must
    show there is a reasonable probability that, but for
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    counsel’s error, the outcome of the proceeding would
    have been different.
    Commonwealth v. Michaud, 
    70 A.3d 862
    , 867 (Pa. Super. 2013) (internal
    quotation marks and citations omitted). “Failure to establish any prong of
    the test will defeat an ineffectiveness claim.”           Commonwealth v.
    Birdsong, 
    24 A.3d 319
    , 329 (Pa. 2011).
    We begin by addressing Appellant’s second and fifth issues.         In his
    second issue, Appellant asserts counsel was ineffective for failing to secure
    transcripts from a protection from abuse (PFA) hearing in family court
    involving Appellant and the complainant.           Appellant’s Brief at 22-24.
    Appellant baldly asserts that “[i]f the complainant’s prior testimony was
    inconsistent with how she testified at trial, counsel could have used the
    transcript for impeachment purposes.”         
    Id. at 22-23.
      In his fifth issue,
    Appellant argues trial counsel was ineffective for failing to “call character
    witnesses to testify about his reputation in the community for possessing
    specific traits.”   
    Id. at 33.
      Appellant argues that “[h]ad trial counsel
    discussed this important trial strategy with him, he would have elected to
    call character witnesses, and he would have secured character witnesses to
    testify on his behalf.” 
    Id. at 33-34.
    In both issues, Appellant fails to articulate his claims with any
    specificity, or set forth how these purportedly ineffective decisions by trial
    counsel would have changed the outcome of trial.          In the second issue,
    Appellant fails to specify what statements made by complainant he wished to
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    use, or how these statements would have been used for impeachment
    purposes.     Further, in his fifth claim, Appellant does not state what
    witnesses he would have presented, or more importantly what character
    traits they would have testified to, or how that would have changed the
    jury’s verdict. Accordingly, Appellant’s claim is waived based on his failure
    to prove his claim is of arguable merit, or how such omissions caused him
    prejudice.    See 
    Fears, supra
    at 804 (concluding that the “failure to
    meaningfully discuss each of the three ineffectiveness prongs” renders claim
    “waived for lack of development[]”).
    Next, in his third issue Appellant argues trial counsel was ineffective
    for failing to object to the testimony of three different witnesses at trial.
    Appellant’s Brief at 25. Specifically, Appellant argues counsel should have
    objected to the testimony of Jennifer Erni regarding dating Appellant for four
    months and subsequently filing a suit against him for $1,200,000.00 in
    damages; Colleen Moran, Appellant’s former spouse who testified that
    Appellant owed her $5,000.00 in child support arrears, that a lien had been
    placed on Appellant’s property, and that the property had been sold in March
    2007; and finally Henry Byrd, Senior Fraud Investigator for Commerce Bank,
    who testified that complainant closed her bank account in May 2007, and
    testified to the balances of, and transaction on Appellant’s account as of
    trial. 
    Id. at 25-28.
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    The Commonwealth, however, argues that Appellant has failed to
    “present his claim with the Pierce framework.”         Commonwealth’s Brief at
    11.   Preliminarily, we agree.       In reference to each of the three witnesses
    Appellant fails to develop his claim based on the arguable merit prong, or to
    address the possibility of choosing not to object as a reasonable trial
    strategy. On this basis alone, we could find waiver. See 
    Fears, supra
    . To
    the extent Appellant purports to argue the prejudice prong of the Pierce
    test to the witnesses, Appellant has failed to explain how, in light of the
    overwhelming evidence against him; the testimony of these three witnesses
    would have changed the outcome at trial, and rather makes bald assertions
    of prejudice.2
    It is axiomatic that to be entitled to PCRA relief, a petitioner must be
    able to show how he or she was prejudiced from trial counsel’s alleged
    ineffectiveness.
    Relating to the prejudice prong of the
    ineffectiveness test, the PCRA petitioner must
    demonstrate that there is a reasonable probability
    that, but for counsel’s error or omission, the result of
    the proceeding would have been different.
    Particularly relevant herein, it is well-settled that a
    court is not required to analyze the elements of an
    ineffectiveness claim in any particular order of
    priority; instead, if a claim fails under any necessary
    element of the Strickland test, the court may
    proceed to that element first.
    ____________________________________________
    2
    Also noteworthy is Appellant’s failure to provide any citations to the notes
    of testimony.
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    Commonwealth v. Koehler, 
    36 A.3d 121
    , 132 (Pa. 2012).
    In this case, Appellant does not explain how objecting to the
    aforementioned testimony would have created “a reasonable probability that
    … the result of the proceeding would have been different.”       
    Id. Based on
    these considerations, we conclude Appellant is not entitled to relief on this
    issue. See Spotz, supra at 319 (stating, “remanding for the PCRA court to
    make factual findings and credibility determinations as to the ‘reasonable
    basis’ prong will be unnecessary if we determine there is no reasonable
    probability that an objection to the challenged jury instruction at trial would
    have    led   to   a   more   favorable   outcome   for   [the   defendant]”);
    Commonwealth v. Steele, 
    961 A.2d 786
    , 797 (Pa. 2008) (stating, “a
    petitioner must set forth and individually discuss substantively each prong of
    the Pierce test[]”).
    Finally, in his fourth issue, Appellant argues trial counsel was
    ineffective for failing to file a motion to dismiss the charges pursuant to
    Pennsylvania Rule of Criminal Procedure 600.         Appellant’s Brief at 31.
    Appellant asserts the charges against him were filed on April 3, 2007, and a
    jury was empaneled on April 16, 2008, 379 days after the criminal charges
    were filed.   
    Id. at 31.
      Therefore, Appellant concludes that his claim that
    “trial counsel was ineffective for not seeking to have his case dismissed has
    legal merit when the Commonwealth failed to bring the case to trial within
    three hundred and sixty-five days.” 
    Id. The Commonwealth
    counters that
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    Appellant’s issue lacks arguable merit as Appellant’s counsel litigated a Rule
    600 motion in his companion case. Commonwealth’s Brief at 14.
    We recognize that the courts of this Commonwealth employ a three-
    step analysis to determine whether Rule 600 requires dismissal of the
    charges against a defendant.
    The first step in determining whether a
    technical violation of Rule 600 […] has occurred is to
    calculate the “mechanical run date.” The mechanical
    run date is the date by which trial must commence
    under the relevant procedural rule.             [T]he
    mechanical run date is ascertained by counting the
    number of days from the triggering event - e.g., the
    date on which … the criminal complaint was filed - to
    the date on which trial must commence under Rule
    [600]. Pa.R.Crim.P. [600(A)(3)].
    Commonwealth v. Preston, 
    904 A.2d 1
    , 11 (Pa. Super. 2006) (internal
    citations omitted), appeal denied, 
    916 A.2d 632
    (Pa. 2007). In the second
    step, we must “determine whether any excludable time exists pursuant to
    Rule 600(C).”    Commonwealth v. Ramos, 
    936 A.2d 1097
    , 1103 (Pa.
    Super. 2007), appeal denied, 
    948 A.2d 803
    (Pa. 2008). Then, in the third
    step, “[w]e add the amount of excludable time, if any, to the mechanical run
    date to arrive at an adjusted run date.” 
    Id. It is
    well settled that any delay occasioned by a defendant is
    excludable time in the calculation of the adjusted run date.     Pa.R.Crim.P.
    600(C)(2)-(3); 
    Preston, supra
    . Furthermore, delays not attributable to a
    defendant but where the Commonwealth is found to have acted with due
    diligence in attempting to commence a timely trial but was prevented by
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    circumstances beyond its control, is also considered excusable time.
    Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 
    989 A.2d 883
    ,
    899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 
    131 S. Ct. 332
    (2010).
    “Due-diligence is a fact-specific concept that is
    determined on a case-by-case basis. Due diligence
    does not require perfect vigilance and punctilious
    care, but rather a showing by the Commonwealth
    that a reasonable effort has been put forth.”
    Commonwealth v. Booze, 
    953 A.2d 1263
    , 1273
    (Pa. Super. 2008) (quotations and quotation marks
    omitted). “Judicial delay may justify postponing trial
    beyond the adjusted run date if the Commonwealth
    was prepared to commence trial prior to the
    expiration of the mandatory period but the court was
    unavailable because of ‘scheduling difficulties and
    the like.’”    
    Preston, 904 A.2d at 14
    (citation
    omitted).
    Commonwealth v. Lynch, 
    57 A.3d 120
    , 124 (Pa. Super.
    2012), appeal denied, 
    63 A.3d 1245
    (Pa. 2013).
    Because the Commonwealth cannot control the
    calendar of a trial court, delay occasioned by the
    court’s unavailability is usually excusable. However,
    the Commonwealth may, under some circumstances
    (e.g. a prolonged judicial absence), have a duty to
    seek other courtrooms to try the case. The extent of
    this duty depends on the specifics of each case. The
    guiding principle is, again, that the Commonwealth
    must exercise due diligence by putting forth a
    reasonable effort in light of the particular case facts.
    Along similar lines, delays caused by administrative
    decisions of the court, decisions over which the
    Commonwealth has no control, are generally
    excused.
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    Commonwealth v. Riley, 
    19 A.3d 1146
    , 1149 (Pa. Super. 2011) (citations
    omitted).
    Preliminarily, we note that Appellant concedes a Rule 600 motion was
    litigated.     He asserts that “[t]he [d]ocket on Appellant’s companion case
    reflects that a [m]otion to [d]ismiss was filed on February 29, 2008, but
    there is no similar entry on the [d]ocket of the instant case.”      Appellant’s
    Brief at 32. Attached to the Commonwealth’s brief is a copy of the Rule 600
    motion filed in Appellant’s companion case at docket number CR-0010072-
    2007.3       Commonwealth’s Brief at Appendix.     Said motion states “[t]rial is
    scheduled to commence on April 7, 2008, having been consolidated for trial
    with charges at CP-51-CR-0010104-2007[, the instant case].”           
    Id. at ¶3.
    The motion only requests dismissal pursuant to Rule 600 at the earlier
    docket number, and not the one in the instant matter. Notably, at the time
    said motion was filed, Rule 600 would not have been violated in the instant
    matter, and therefore, it would have been premature for counsel to file a
    Rule 600 motion.
    ____________________________________________
    3
    We note said motion is not included in the docket that was transmitted to
    this Court. Nevertheless, as it is not critical to our review, we can address
    Appellant’s claim. Further, the PCRA court opinion states that “[a] cursory
    review of the Record reflects that a motion to dismiss pursuant to
    Pa.R.Crim.P. 600 was heard and on April 14, 2008 it was denied.” PCRA
    Court Opinion, 11/24/14, at 10. The certified record does not contain any
    notation of a denial of a Rule 600 motion on this date, but we can assume it
    was the date on which the February 29, 2008 motion was denied.
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    Herein, Appellant was charged on April 3, 2007. Assuming arguendo
    there were no excludable or excusable periods of time, the Commonwealth
    had 365 days, or until April 2, 2008 to bring Appellant to trial. However, the
    docket reveals that at the November 14, 2007 scheduling conference
    “Discovery complete.      List for 4 day jury trial on 4/7/08[,]” noting that
    March 10, 2008 was “no good for [defense counsel], next earliest date 3/24
    was no good for Commonwealth[,]” thus, the trial court listed the case for
    April 7, 2008. Additionally, the docket indicates on April 7, 2008 “Court on
    trial.   Continued until 4/8/08[.]”   April 8, April 10, April 14, and April 15,
    2008 all contain notations of hearings without further notation.           Trial
    commenced on April 15, 2008.          At a minimum, the period of time from
    March 24, 2008 through April 8, 2008 would be excludable time. See 
    Riley, supra
    . Therefore, this is a total of 15 days of excludable time, making the
    mechanical run date April 17, 2008 date. As a result, the Commonwealth
    did not violate Rule 600.     Accordingly, Appellant’s claim that trial counsel
    was ineffective for failing to file a Rule 600 motion has no arguable merit.
    See 
    Michaud, supra
    .
    Based on the foregoing, we conclude the PCRA court did not abuse its
    discretion by dismissing Appellant’s petition without a hearing, as all of
    Appellant’s claims of ineffective assistance of counsel are either waived or
    lack arguable merit.      See 
    Roney, supra
    ; see also 
    Birdsong, supra
    .
    Therefore, we affirm the PCRA court’s July 21, 2014 order.
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    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/25/2016
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