Com. v. Foster, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DALE FOSTER,
Appellant No. 1689 EDA 2015
Appeal from the PCRA Order May 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1008631-1998
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 25, 2016
Appellant, Dale Foster, pro se, appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual and procedural
history of this case as follows:
This case has a tortured procedural history, which we
summarize as follows. On October 20, 1999, Appellant was
found guilty by a jury of one count each of aggravated assault,
carrying a firearm without a license, carrying firearms in public,
persons not to possess a firearm, criminal trespass, possession
of an instrument of a crime, terroristic threats, simple assault,
recklessly endangering another person (REAP), resisting arrest,
and criminal conspiracy. On December 16, 1999, the trial court
imposed an aggregate sentence of 24½ to 77 years’
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*
Retired Senior Judge assigned to the Superior Court.
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imprisonment. Appellant did not file any post-sentence motions.
On November 9, 2001, this Court affirmed the judgment of
sentence. Commonwealth v. Foster, 792 A.2d 613 (Pa.
Super. 2001) (unpublished memorandum) (Foster I). Appellant
did not file a petition for allowance of appeal in our Supreme
Court.
Appellant timely filed his first PCRA petition on November
12, 2002. The PCRA court dismissed said petition on October
20, 2004. On June 15, 2006, this Court dismissed Appellant’s
appeal, concluding that Appellant had waived all issues by not
filing a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Commonwealth v. Foster, 905 A.2d 1042 (Pa. Super. 2006)
(unpublished memorandum) (Foster II).
On March 28, 2007, Appellant filed a second pro se PCRA
petition. Counsel, who represented Appellant in the first PCRA,
filed a supplemental PCRA petition on July 13, 2007, alleging
that Appellant was deprived of the effective assistance of counsel
due to counsel’s own failure to file a Rule 1925(b) statement
during his first PCRA appeal. On a motion from the
Commonwealth, the PCRA court appointed new counsel for
Appellant. The Commonwealth also informed the PCRA court
that it did not oppose the restoration of Appellant’s PCRA appeal
rights nunc pro tunc.
On February 2, 2009, the PCRA court entered the following
order.
AND NOW this 29th day of January 2009 on motion
of John P. Cotter, Esq., Attorney for Appellant,
Appellant’s PCRA petition is granted and Appellant’s
appeal rights are reinstated and Appellant is
permitted to file a notice of appeal nunc pro tunc
from the denial of PCRA relief imposed in the above
matter within 30 days of the date hereof.
PCRA Court Order, 2/2/09. Accordingly, Appellant filed a timely
notice of appeal nunc pro tunc from the denial of PCRA relief to
this Court on February 4, 2009.
On March 26, 2010, this Court issued its decision in an
unpublished memorandum. Relevant to this appeal, this Court
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characterized the case as a direct appeal nunc pro tunc from
Appellant’s judgment of sentence. The panel specifically
concluded as follows.
As already noted, we determine this case is
before us on direct appeal, nunc pro tunc, from
Appellant’s judgment of sentence. While both
Appellant and the Commonwealth believe this case is
before us as a collateral appeal from the denial of
Appellant’s first PCRA petition, we disagree. Here,
Judge Dembe granted Appellant’s second PCRA
petition, and reinstated his right to file a direct
appeal nunc pro tunc, which Appellant did.
Commonwealth v. Foster, 996 A.2d 541 (Pa. Super. 2010)
(unpublished memorandum at 7) (Foster III). The Court
declined to address any of Appellant’s claims of ineffective
assistance of counsel on appeal pursuant to Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), in which our Supreme Court
held that claims of ineffective assistance of counsel must be
deferred to collateral attack under the PCRA. Id. at 738; Foster
III, supra. The panel concluded that it could not address
Appellant’s claims of trial counsel ineffectiveness because the
trial court did not conduct an evidentiary hearing or develop a
record. Id. Therefore, this Court concluded “the proper
disposition is to dismiss his claim without prejudice to proceed
pursuant to the PCRA.” Id. Neither Appellant nor the
Commonwealth filed a petition for allowance of appeal in our
Supreme Court.
On May 7, 2010, Appellant filed the instant pro se PCRA
petition. On December 17, 2010, counsel filed an amended
PCRA petition. After a substitution of counsel, a second
amended PCRA petition was filed on Appellant’s behalf on
October 17, 2011. The Commonwealth filed its motion to
dismiss on December 22, 2011. On July 12, 2012, Appellant
filed a supplemental amended petition. The Commonwealth filed
a supplemental answer on November 13, 2012.
On January 22, 2013, the PCRA court issued notice of its
intent to dismiss Appellant’s petition without a hearing pursuant
to Pennsylvania Rule of Criminal Procedure 907. On January 31,
2013, Appellant filed a pro se response, and on February 21,
2013, Appellant filed a counseled response. On March 7, 2013,
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the PCRA court entered its final order dismissing Appellant’s
PCRA petition as untimely. On March 11, 2013, Appellant filed a
timely notice of appeal.2
2
On March 14, 2013, the PCRA court entered an
order directing Appellant to file a Rule 1925(b)
statement within 21 days. Counsel for Appellant
complied on April 3, 2013. On April 17, 2013,
Appellant filed a pro se supplemental Rule 1925(b)
statement, objected to counsel’s Rule 1925(b)
statement and claimed ineffective assistance of PCRA
counsel. On May 10, 2013, Appellant filed an
application for remand in this Court for the PCRA
court to conduct a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998). On May 29, 2013, this Court remanded the
case for the 60 days for the PCRA to conduct a
Grazier hearing. The PCRA court conducted the
required Grazier hearing on October 17, 2013 and
granted Appellant the right to proceed pro se.
Commonwealth v. Foster, 788 EDA 2013, 116 A.3d 693 (Pa. Super. filed
December 19, 2014) (unpublished memorandum at 1-5) (footnote omitted).
On appeal, this Court determined that the PCRA court improperly
concluded that the PCRA petition was untimely filed. Foster, 788 EDA 2013
at 8, 116 A.3d 693. As this Court explained:
It was the judgment of this Court on March 26, 2010 that
Appellant’s appeal docketed at 433 EDA 2009 was a direct
appeal nunc pro tunc from his December 16, 1999 original
judgment of sentence. Therefore, Appellant’s judgment of
sentence was affirmed by this Court on March 26, 2010, despite
already having been affirmed on November 9, 2001 after a
consideration of Appellant’s issues on the merits. Neither
Appellant nor the Commonwealth filed a petition for allowance of
appeal in our Supreme Court. . . . Consequently, the effect of
this Court’s judgment in Foster III was to reset the clock for
the purposes of the PCRA time-bar. Therefore, Appellant’s
judgment of sentence became final on April 26, 2010, when the
filing period for an allocatur petition in our Supreme Court
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expired. As a result, Appellant had until April 26, 2011 to timely
file a PCRA petition. As Appellant filed the instant petition on
May 7, 2010, it was timely filed. Therefore, the PCRA court’s
conclusion that the PCRA petition was untimely was not correct.
Foster, 788 EDA 2013, (unpublished memorandum at 8-9)(internal citations
and footnote omitted). Accordingly, we vacated the PCRA court’s order and
remanded the case to the PCRA court without expressing any opinion on the
merits of the issues raised.
Appellant petitioned the PCRA court to appoint counsel to represent
him. This petition was denied on November 27, 2013, and Appellant was
advised that he retained the right to proceed pro se or that he could retain
private counsel to represent him. Appellant also filed a similar petition with
this Court. By order dated January 7, 2014, this Court denied the petition
for appointed counsel in light of Appellant being permitted to proceed pro se
following the waiver of counsel proceeding pursuant to Grazier, but stated
in that order that Appellant could petition the PCRA court to have prior PCRA
counsel reappointed. Order, 1/7/14. No such petition was filed by
Appellant. On March 23, 2015, Appellant filed with the PCRA court a motion
to appoint counsel other than former PCRA counsel. Appellant also filed a
petition for allowance of appeal to our Supreme Court, challenging the
January 7, 2014 order of this Court, which was denied. Commonwealth v.
Foster, 35 EM 2014, 95 A.3d 276 (Pa. filed June 12, 2014). The motion to
appoint different PCRA counsel was denied by the PCRA court by order
entered April 2, 2015. Order, 4/2/15.
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After reviewing the issues raised in Appellant’s May 7, 2010 PCRA
petition, the PCRA court on April 21, 2015, issued a notice of intent to
dismiss the PCRA petition. By order entered May 11, 2015, the PCRA court
dismissed the PCRA petition. A timely notice of appeal was filed on May 29,
2015. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)
statement, and Appellant timely complied. In his Pa.R.A.P. 1925(b)
statement, Appellant presented the following issues:
1. The trial court erred in denying [Appellant’s] PCRA Petition
where trial counsel was ineffective for failing to object to the
admission of the Commonwealth’s expert regarding the ballistics
evidence and failing to present his own expert with regard to the
ballistics evidence. All subsequent counsel were ineffective for
failing to properly preserve this issue.
2. The trial court erred in denying [Appellant’s] PCRA Petition
where trial counsel was ineffective at the sentencing hearing and
all subsequent counsel were ineffective for failing to properly
preserve the sentencing issues on subsequent proceedings.
3. The trial court erred in denying [Appellant’s] PCRA Petition
where appellate counsel was ineffective for failing to argue the
sentencing issue on direct appeal. All subsequent counsel were
ineffective for failing to properly preserve this issue.
4. The trial court erred in denying [Appellant’s] PCRA Petition
where Trial counsel was ineffective for failing to file a motion to
withdraw when he was not properly prepared for trial, where he
failed to prepare adequately for trial, obtain proper discovery or
consult with [Appellant] properly prior to trial. All subsequent
counsel were ineffective for failing to properly preserve this
issue.
5. The trial court erred in denying [Appellant’s] PCRA Petition
where Trial counsel’s conduct was deficient under both State and
Federal case law, for without adequate consultation he was
incapable of acquiring pertinent information, conducting
meaningful investigations, and sensibly evaluating all available
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defensive options. All subsequent counsel were ineffective for
failing to properly preserve this issue.
Appellant’s Pa.R.A.P. 1925(b) statement, 11/20/15, at 1. The PCRA court
prepared an opinion pursuant to Pa.R.A.P. 1925(a), thoroughly addressing
these claims. PCRA Court Opinion, 11/20/15, at 1-13.
Appellant presents the following issues for our review:1
I. Did this court commit an error of law by determining that
Appellant’s Post Conviction Petition was untimely?
II. Was Appellant denied due process of law when this court
found the certified record contradicted the court’s determination
that [Appellant’s] PCRA petition was untimely?
Appellant’s Brief at 4 (full capitalization omitted).
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
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1
We note that Appellant fails to present his issues in a statement of
questions involved as required by Pa.R.A.P. 2111 and 2116. However,
because we are able to ascertain his issues from the brief, and our review is
not hampered, we decline to find waiver on this basis.
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support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
In both issues raised, Appellant argues that the PCRA court erred in
determining that his PCRA petition was untimely filed. Appellant’s Brief at 4-
7. Specifically, Appellant contends that:
The Court’s decision to dismiss this appeal could only be
the result of ineffectiveness of PCRA Counsel for failure to
submit, a 1925(b) statement, failure of the PCRA Court to abide
by It’s [sic] mandate and order of March 26, 2010, as required
by these proceedings according to Commonwealth v. Perez, 799
A.2d 848 (Pa. Super. 2002) even though the petition appears to
be untimely on its face.
Id. at 7. Appellant further requests that appeal proceedings be stayed until
he is provided copies of his trial transcripts and relevant PCRA transcripts for
perfecting his appeal “in a reasonable amount of time without [which] would
result in a denial of due process and a miscarriage of justice.” Id. at 8.
Despite Appellant’s assertion that the PCRA court erred in dismissing
his PCRA petition as untimely, we observe that the PCRA court did not
dismiss Appellant’s petition on the basis of untimeliness. As stated, the
PCRA court issued an opinion that thoroughly addressed the merits of the
issues Appellant raised in his Pa.R.A.P. 1925(b) statement. In addressing
these issues, the PCRA court determined that Appellant’s claims of
ineffective assistance of counsel were meritless. Thus, we conclude that
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Appellant’s claims that the PCRA court erred in determining that his PCRA
petition was untimely lack merit.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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2
While Appellant raised multiple issues regarding ineffectiveness of counsel
in his Pa.R.A.P. 1925(b) statement, he has failed to pursue those issues on
appeal. Because Appellant fails to argue in his brief on appeal the issues
raised in his Pa.R.A.P. 1925(b) statement, those issues are waived. See
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(“an issue identified on appeal but not developed in the appellant’s brief is
abandoned and, therefore, waived.”).
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