Com. v. Jackson, A. ( 2015 )

J-S24004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JACKSON
Appellant No. 404 EDA 2014
Appeal from the PCRA Order December 16, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014203-2007;
CP-51-CR-0014205-2007; CP-51-CR-0014206-2007
BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 24, 2015
Appellant, Anthony Jackson, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On the night of September 10, 2007, [Wilson F.], an
Operations Specialist in the United States Coast Guard,
was standing on the steps outside his house at 1848 Sulis
Street in Philadelphia. Also outside were his housemate,
[David P.], and his friend, [Kwame F.]. During this time,
two men walked down 19th Street and stood on the corner
near [Wilson F.’s] house. Moments later, a burgundy
Dodge Neon turned on Sulis Street from 19th Street and
stopped by the two men. A passenger offered the two
men a ride to a party, which they declined, saying they
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42 Pa.C.S.A. §§ 9541-9546.
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would meet them there. A few minutes later, the Neon
drove away leaving the two men on the corner. Right after
that, [David P.] went inside, but [Wilson F.] and [Kwame
F.] remained outside.
Moments later, [Kwame F.] saw two men in black, one
wearing a mask, ducking and coming up the sidewalk
toward the two men. This prompted [Kwame F.] to say
that it looked like there was about to be a shootout. Then,
for no apparent reason, one of the two men on the corner
pulled a gun from under his shirt, pointed it at [Kwame F.],
and said “yeah you.” That prompted [Wilson F.] to grab
[Kwame F.’s] shoulder and tell him to run. [Kwame F.]
ran inside the house safely, but before [Wilson F.] could
get inside, the man with the gun shot [Wilson F.] in his
right thigh and right foot. [Wilson F.] yelled out that he
was hit and ran into the house and up the stairs until he
reached [David P.’s] bedroom, where he bled profusely
while [Kwame F.] tried to apply first aid and [David P.]
called 9-1-1. Medical personnel arrived about ten to
fifteen minutes later and took [Wilson F.] to Einstein
Hospital.
About ten minutes after [Wilson F.] was taken to the
hospital, police took [Kwame F.] and [David P.] about a
block away to where moments earlier, Officer [Jason] Reid
had stopped a burgundy Dodge Neon after receiving flash
information that four males inside a vehicle matching that
description might have knowledge of the shooting.
Removed from the car were [Timothy J.], [Russell L.],
[Jerrel M.], and [Appellant], who was very anxious and
sweated heavily when Officer Reid spoke with him.
[Kwame F.] was able to positively identify both the car and
its driver and front seat passenger as being outside the
house just before the shooting. [Appellant] and the three
others were then taken to a police station, but were
released later that day.
On September 11, 2007, [Wilson F.] gave a description of
the shooter to Detective [Stephen] Grace at Einstein
Hospital after he woke up from surgery. Based on the
description given by [Wilson F.], Detective Grace prepared
two photo arrays, one of which included [Appellant’s]
photograph. On September 12, 2007, Detective Grace
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returned to Einstein to show the arrays to [Wilson F.].
When [Wilson F.] viewed the first array, which included
[Appellant’s] image and seven others with similar facial
features, he immediately recognized [Appellant], stating:
“That’s the person that shot me.” On the second array,
[Wilson F.] was less certain, but identified codefendant
[Rasheed B.] as the second male on the corner who was
with the shooter. [Wilson F.] circled the photos of
[Appellant] and [Rasheed B.] and signed his name to both
arrays. Arrest warrants were then obtained for [Appellant]
and [Rasheed B.].
[Appellant] surrendered on October 9, 2007, and gave a
statement to Detective Grace in which he said that he was
at a birthday party with [Timothy J.] at the time the
shooting occurred. At trial, [Timothy J.] testified that
[Appellant] was at his birthday party at the time the
shooting occurred, but that they left at about midnight in
order to take [Russell L.] home because he was
intoxicated. [Appellant] also called [Clifton G.] who
testified that [Appellant] had a reputation for being
nonviolent and [another witness] who testified that
[Appellant] had a reputation for being mild-mannered and
respectful.
The bullet that struck [Wilson F.’s] leg hit an artery and his
wounds required four surgeries and over five weeks of
hospitalization. At the time of trial, [Wilson F.] was still
taking medication for pain and neurological damage, was
still in physical therapy, and had lingering muscle and
nerve damage that caused his leg to buckle when he
walked.
Commonwealth v. Jackson, No. 152 EDA 2010, unpublished
memorandum at 1-3 (Pa.Super. filed January 19, 2011) (quoting Trial Court
Opinion, filed May 10, 2010, at 2-4).
Following trial, a jury convicted Appellant of two (2) counts each of
aggravated assault and criminal conspiracy, and one (1) count each of
attempted murder, carrying a firearm without a license, possessing an
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instrument of crime, and recklessly endangering another person. On
October 31, 2008, the court sentenced Appellant to an aggregate term of
fifteen (15) to thirty (30) years’ imprisonment. This Court affirmed the
judgment of sentence on January 19, 2011, and our Supreme Court denied
Appellant’s petition for allowance of appeal on August 30, 2011.
On August 9, 2012, Appellant timely filed a pro se PCRA petition. In it,
Appellant raised multiple claims of ineffective assistance of trial and direct
appeal counsel. The court appointed PCRA counsel, who filed a motion to
withdraw representation and “no-merit” letter, pursuant to Commonwealth
v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On October 31, 2013,
the court issued notice of its intent to dismiss the petition without a hearing,
pursuant to Pa.R.Crim.P. 907.2 The court denied PCRA relief on December
16, 2013. That same day, the court permitted PCRA counsel to withdraw.
On January 10, 2014, Appellant timely filed a pro se notice of appeal and
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2
The PCRA court notes Appellant “mailed the [c]ourt” a pro se response to
the Rule 907 notice, which the court received on November 25, 2013.
(PCRA Court Opinion, filed April 7, 2014, at 2). Significantly, Appellant’s pro
se response to the Rule 907 notice does not appear in the certified record,
and the criminal docket entries do not list the pro se filing. Thus, it appears
Appellant did not properly file the pro se response to the Rule 907 notice.
See Commonwealth v. Crawford, 17 A.3d 1279, 1282 (Pa.Super. 2011)
(stating “simply depositing a motion in a judge’s chambers is not filing,” and
“the document must at least be addressed to a proper filing office within the
Unified Judicial System in order to complete the filing”).
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concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(b).
Appellant raises three issues for our review:
WHETHER PCRA COUNSEL [ERRED] BY FILING A “NO-
MERIT” LETTER, WHERE COUNSEL FAILED TO PROPERLY
REVIEW THE RECORD AND [APPELLANT’S] CLAIMS WERE
MERITORIOUS.
WHETHER [THE] PCRA COURT [ERRED] BY ACCEPTING
COUNSEL’S “NO-MERIT” LETTER, WHERE COUNSEL’S
FINDINGS WERE NOT SUPPORTED BY THE RECORD.
WHETHER [THE] PCRA COURT [ERRED] BY NOT HAVING
AN EVIDENTIARY HEARING WHEN THERE WAS A GENUINE
ISSUE OF MATERIAL FACT PRESENT THAT NEEDED TO BE
RESOLVED.
(Appellant’s Brief at 4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA
hearing as a matter of right; the PCRA court can decline to hold a hearing if
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there is no genuine issue concerning any material fact, the petitioner is not
entitled to PCRA relief, and no purpose would be served by any further
proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).
On appeal, Appellant contends PCRA counsel did not conduct a proper
review of the issues raised in the pro se PCRA petition. Appellant insists
PCRA counsel incorrectly interpreted some of the issues raised in the pro se
PCRA petition, and the legal conclusions in the “no-merit” letter are
unsupported by the record. Moreover, Appellant posits, “The record of this
matter supports a finding that the court failed to conduct an independent
review of the record before accepting counsel’s ‘no-merit’ letter.”
(Appellant’s Brief at 45). Appellant concludes the PCRA court erroneously
accepted the “no-merit” letter, and the court should not have permitted
PCRA counsel to withdraw. Appellant further concludes that genuine issues
of material fact still exist, and the PCRA court should have conducted an
evidentiary hearing. We disagree.
“Before an attorney can be permitted to withdraw from representing a
petitioner under the PCRA, Pennsylvania law requires counsel to file and
obtain approval of a ‘no-merit’ letter pursuant to the mandates of
Turner/Finley.” Commonwealth v. Karanicolas, 836 A.2d 940, 947
(Pa.Super. 2003) (emphasis in original).
[C]ounsel must…submit a “no-merit” letter to the trial
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
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explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
petition to withdraw and advise the petitioner of his right to proceed pro se
or with private counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra. Additionally,
the PCRA court “must conduct its own independent evaluation of the record
and agree with counsel that the petition is without merit….”
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa.Super. 2014).
Instantly, counsel filed a Turner/Finley letter and motion to withdraw
as counsel with the PCRA court. Counsel listed the issues Appellant wished
to raise and explained why the issues merit no relief.3 Counsel indicated
that he sent Appellant a copy of the “no-merit” letter and motion to
withdraw, as well as an explanation of Appellant’s right to proceed pro se or
with private counsel. Thus, counsel substantially complied with the
Turner/Finley requirements. See Wrecks, supra. Moreover, the PCRA
court conducted an independent review of the record and agreed with
counsel that the issues raised in Appellant’s pro se PCRA petition were
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3
Contrary to Appellant’s assertions, the record reveals that PCRA counsel
correctly interpreted all of the issues raised in the pro se PCRA petition and
provided support for his conclusion that the issues lacked merit.
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meritless. See Reed, supra. Thus, the PCRA court did not err in permitting
counsel to withdraw.
In addition to attacking the court’s decision to allow PCRA counsel to
withdraw, Appellant asserts that PCRA counsel was ineffective on multiple
bases. Appellant, however, failed to raise these claims in a properly filed
response to the PCRA court’s Rule 907 notice. 4 Consequently, Appellant’s
claims regarding PCRA counsel’s purported ineffectiveness are waived. See
Ford, supra (holding claims of PCRA counsel’s ineffectiveness cannot be
raised for first time after notice of appeal has been filed from underlying
PCRA matter). Although Appellant’s brief includes argument regarding trial
and direct appeal counsels’ ineffectiveness, Appellant presents such
argument in an attempt to demonstrate PCRA counsel’s ineffectiveness in
conjunction with the preparation of the “no-merit” letter. Appellant’s pro se
Rule 1925(b) statement also framed his issues in terms of PCRA counsel’s
ineffectiveness, rather than raising independent claims of trial and direct
appeal counsels’ ineffectiveness. See Pro Se Rule 1925(b) Statement, filed
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4
Appellant insists “[a] proper reading of Appellant’s objections to the court’s
[Rule 907] notice reveals that Appellant sought to preserve claims of PCRA
counsel’s ineffectiveness regarding all of the claims presented….”
(Appellant’s Brief at 15). We emphasize, however, Appellant’s pro se
response to the Rule 907 notice does not appear in the certified record, and
this Court cannot consider any item that is not part of the certified record.
See Commonwealth v. Houck, 102 A.3d 443 (Pa.Super. 2014) (reiterating
appellate court may consider only those materials included in certified
record, when resolving issues).
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1/10/14, at 1-2. Thus, we do not undertake any further review of trial and
direct appeal counsels’ purported ineffectiveness. Based upon the foregoing,
we affirm the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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