Com. v. Palmero, I. ( 2018 )


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  • J-S26025-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                          :
    :
    :
    ISHMAEL PALMERO,                         :
    :
    Appellant             :   No. 247 EDA 2017
    Appeal from the PCRA Order December 9, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0011132-2010
    BEFORE:    BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
    MEMORANDUM BY BOWES, J.:                              FILED JUNE 07, 2018
    Ishmael Palmero appeals pro se from the order that dismissed his
    petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
    Appellant was convicted of first-degree murder, rape, and other crimes
    based upon his killing of Darnell Goode, the new paramour of his ex-partner,
    Lotoya Dupree.     Afterwards, Appellant forced Ms. Dupree to have sexual
    intercourse with Appellant while he held the bloody knife he had used to stab
    Mr. Goode sixty-four times.     He was sentenced to concurrent terms of life
    imprisonment and seventeen and one-half to thirty-five years imprisonment.
    On Appellant’s direct appeal, this Court affirmed the judgment of sentence
    and our Supreme Court denied his petition for allowance of appeal.
    Commonwealth v. Palmero, 
    121 A.3d 1119
     (Pa.Super. 2015), appeal
    denied, 
    124 A.3d 309
     (Pa. 2015).
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S26025-18
    Appellant timely filed a pro se PCRA petition, and the PCRA court
    appointed counsel. Counsel filed a motion to withdraw and no-merit letter
    pursuant to Commonwealth v. Turner, 
    544 A.2d 927
     (Pa. 1988), and
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988) (en banc). The
    PCRA court issued notice of its intent to dismiss Appellant’s petition pursuant
    to Pa.R.Crim.P. 907, and Appellant filed a response.           The PCRA court
    nonetheless dismissed Appellant’s petition by order of December 9, 2016, and
    Appellant timely filed a notice of appeal.1 Both Appellant and the PCRA court
    complied with Pa.R.A.P. 1925.
    On appeal, Appellant clams that he is entitled to relief because (1) his
    sentence of life imprisonment is illegal, (2) the prosecution suppressed
    information favorable to his defense in violation of Brady v. Maryland, 
    373 U.S. 83
     (1963), and (3) PCRA counsel was ineffective in failing to state various
    claims of ineffective assistance of prior counsel. Appellant’s brief at 4.
    ____________________________________________
    1 Appellant’s notice of appeal was docketed more than thirty days after the
    date of the order dismissing his petition. However, (1) the docket contains no
    indication of the date it was served upon Appellant’s then-former counsel as
    required by Pa.R.Crim.P. 114(C)(2)(c), and (2) the date of the clerk of courts’
    receipt of the notice suggests it likely was placed in the hands of prison
    authorities by the thirtieth day. Moreover, the Commonwealth does not
    contend that the appeal was untimely. Therefore, we deem Appellant’s notice
    of appeal timely. See Commonwealth v. Jerman, 
    762 A.2d 366
    , 368
    (Pa.Super. 2000) (deeming appeal timely where clerk of courts did not
    properly enter appealed-from order on the docket); Commonwealth v.
    Cooper, 
    710 A.2d 76
    , 78 (Pa.Super. 1998) (“[F]or prisoners proceeding pro
    se, a notice is deemed filed as of the date it is deposited in the prison mail
    system.”).
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    “Our standard of review for issues arising from the denial of PCRA relief
    is well-settled.   We must determine whether the PCRA court’s ruling is
    supported by the record and free of legal error.”         Commonwealth v.
    Johnson, 
    179 A.3d 1153
    , 1156 (Pa.Super. 2018) (internal quotation marks
    omitted).
    Appellant first contends that his PCRA petition should not have been
    dismissed because he is serving a sentence which the trial court lacked the
    statutory authority to impose. Appellant’s brief at 9-13. Appellant notes that
    18 Pa.C.S. § 1102(a)(1) specifies that, except under circumstances not
    relevant here, “a person who has been convicted of a murder of the first
    degree . . . shall be sentenced to death or to a term of life imprisonment in
    accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for
    murder of the first degree).” Section 9711(a)(1) provides “[a]fter a verdict
    of murder of the first degree is recorded and before the jury is discharged, the
    court shall conduct a separate sentencing hearing in which the jury shall
    determine whether the defendant shall be sentenced to death or life
    imprisonment.”
    Appellant claims that these statutes were violated because, in his case,
    the trial court discharged the jury without having a separate sentencing
    hearing, and the trial court, not the jury, determined that Appellant was to be
    sentenced to life imprisonment.    Appellant’s brief at 11.   Appellant argues
    that, because § 9711 does not grant the trial court the authority to impose a
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    sentence on first-degree murder, his sentence must be vacated. Id. at 12
    (citing, inter alia, Commonwealth v. Arest, 
    734 A.2d 910
    , 912 (Pa.Super.
    1999) (“If no statutory authorization exists for a particular sentence, then that
    sentence is illegal and . . . must be vacated.”)).
    Our legislature has determined that only two sentences are permissible
    for an adult convicted of first-degree murder: death or life imprisonment. That
    is the import of 18 Pa.C.S. § 1102(a)(1). In order for the death penalty to be
    a sentencing option post-conviction, the prosecution must, initially, disclose
    its intent to seek the death penalty at the time of arraignment, and file a
    notice of the aggravating circumstances alleged. Commonwealth v. Buck,
    
    709 A.2d 892
    , 896 (Pa. 1998). When the Commonwealth has not sought the
    death penalty, which it did not in the instant case, ipso facto the only sentence
    allowed under 18 Pa.C.S. § 1102(a)(1) is that of life imprisonment. Indeed,
    the imposition of life imprisonment upon a first-degree murder conviction is
    mandatory in non-capital cases, and no “individualized consideration of
    offender and crime,” which is the purpose of the procedures established in 42
    Pa.C.S. § 9711, is required. Commonwealth v. Yount, 
    615 A.2d 1316
    , 1321
    (Pa.Super. 1992). Accordingly, the PCRA court did not err in finding no merit
    in Appellant’s first claim.
    Appellant next contends that the Commonwealth committed a Brady
    violation by withholding exculpatory evidence. Specifically, he contends that
    the discovery materials provided to the defense omitted the portions of Ms.
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    J-S26025-18
    Dupree’s medical records reflecting her statements made to the attending
    physician and “all physical and scientific findings” by the physician and medical
    staff that “would support or negate rape.” Appellant’s brief at 14.
    “The crux of the Brady rule is that due process is offended when the
    prosecution   withholds   material   evidence    favorable   to   the   accused.”
    Commonwealth v. Wholaver, 
    177 A.3d 136
    , 158 (Pa. 2018). “To succeed
    on a Brady claim, the defendant must show: (1) evidence was suppressed by
    the prosecution; (2) the evidence, whether exculpatory or impeaching, was
    favorable to the defendant; and (3) prejudice resulted.” Commonwealth v.
    Hannibal, 
    156 A.3d 197
    , 209 (Pa. 2016).
    The PCRA court determined that there is no indication that any rape kit
    materials or medical records were withheld from Appellant.           PCRA Court
    Opinion, 8/29/17, at 13. “Indeed, this evidence was admitted into the record
    without objection by stipulation at trial.” 
    Id.
     (citing, N.T., 9/26/13, at 45-56).
    Our review of the record supports the PCRA court’s determination.
    Among the trial exhibits in the certified record is Commonwealth Exhibit 152,
    which is Thomas Jefferson University Hospital records for Ms. Dupree that
    include the nursing triage report, the attending physicians notes, lab results,
    and sexual assault medical report reflecting Ms. Dupree’s narrative of the
    incident and the physical exam report. Appellant has failed to identify any
    materials that were withheld, let alone ones favorable to the defense.
    Therefore, we conclude that the PCRA court did not err in finding no merit in
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    Appellant’s Brady claim.2 See, e.g., Commonwealth v. Roney, 
    79 A.3d 595
    , 610 (Pa. 2013) (explaining Brady claim failed because, inter alia, the
    “PCRA court found that the Commonwealth had disclosed all the information
    in its possession”).
    Appellant’s remaining claims are of ineffective assistance of counsel.
    The following principles guide our review.
    Counsel is presumed effective, and an appellant has the
    burden of proving otherwise. In order for Appellant to prevail on
    a claim of ineffective assistance of counsel, he must show, by a
    preponderance of the evidence, ineffective assistance of counsel
    which so undermined the truth-determining process that no
    reliable adjudication of guilt or innocence could have taken place.
    To prevail on his ineffectiveness claims, Appellant
    must plead and prove by a preponderance of the
    evidence that: (1) the underlying legal claim has
    arguable merit; (2) counsel had no reasonable basis
    for his action or inaction; and (3) Appellant suffered
    prejudice because of counsel’s action or inaction.
    With regard to the [reasonable basis] prong, we will
    conclude that counsel’s chosen strategy lacked a
    reasonable basis only if Appellant proves that an
    alternative not chosen offered a potential for success
    substantially greater than the course actually
    pursued.      To establish the [prejudice] prong,
    Appellant must show that there is a reasonable
    probability that the outcome of the proceedings would
    have been different but for counsel’s action or
    inaction.
    ____________________________________________
    2 Furthermore, as the Commonwealth notes, Ms. Dupree’s medical records do
    not support a Brady claim because they were not within the exclusive control
    of the prosecution, but were equally available to Appellant. Commonwealth’s
    brief at 11 (citing, inter alia, Commonwealth v. Miller, 
    746 A.2d 592
    , 600
    (Pa. 2000) (holding Brady claim meritless because hospital records in
    question were equally available to prosecution and defense)).
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    Commonwealth v. Brown, 
    161 A.3d 960
    , 965 (Pa.Super. 2017) (citations
    and quotation marks omitted).
    Appellant contends that PCRA counsel should have amended the PCRA
    petition to state various claims of prior counsel’s ineffectiveness.3 Appellant’s
    brief at 16-25. Among these allegations are Appellant’s contentions that all
    of his attorneys rendered ineffective assistance in failing to raise or litigate the
    claims that the trial court lacked authority to sentence him and that the
    Commonwealth committed a Brady violation. As we have determined that
    those claims lack merit for the reasons discussed above, none of his attorneys
    was ineffective in failing to pursue them. Commonwealth v. Sneed, 
    45 A.3d 1096
    , 1115 (Pa. 2012) (“Counsel will not be deemed ineffective for failing to
    raise a meritless claim.”).
    Appellant also asserts that his direct appeal counsel was ineffective in
    failing to preserve the claim that the evidence at trial was insufficient to
    sustain his rape conviction. In Appellant’s direct appeal, this Court reviewed
    the sufficiency-of-the-evidence claims regarding the murder and sexual
    assault convictions, but held that the claim regarding the rape conviction was
    waived for failure to include it in the Rule 1925(b) statement.          Palmero,
    ____________________________________________
    3 Appellant preserved the issues related to PCRA counsel’s effectiveness by
    raising them in the PCRA court in response to the notice of intent to dismiss.
    See Objections to Intent to Dismiss, 11/16/16, at 3-7; Commonwealth v.
    Rykard, 
    55 A.3d 1177
    , 1186 (Pa.Super. 2012).
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    J-S26025-18
    supra (unpublished memorandum at 8).           Appellant argues that he was
    prejudiced by counsel’s failure to preserve the claim because “the rape
    evidence is so weak and inconclusive that, as a matter of law” his conviction
    would have been overturned. Appellant’s brief at 18.
    Appellant seems to base his argument on the fact, repeatedly reiterated
    throughout his brief, that Ms. Dupree testified that she did not think that she
    had been raped. N.T. Trial, 9/24/13, at 171-72; N.T. Trial, 9/25/13 a.m., at
    114. The statute under which Appellant was convicted provides that a person
    commits rape where he engages in sexual intercourse with a complainant by
    forcible compulsion. 18 Pa.C.S. § 3121(a)(1).
    It is well-established that in order to prove the forcible
    compulsion component, the Commonwealth must establish,
    beyond a reasonable doubt, that the defendant used either
    physical force, a threat of physical force, or psychological
    coercion, since the mere showing of a lack of consent does not
    support a conviction for rape by forcible compulsion. . . .
    [F]orcible compulsion includes not only physical force or violence,
    but also moral, psychological or intellectual force used to compel
    a person to engage in sexual intercourse against that person’s will.
    Commonwealth v. Eckrote, 
    12 A.3d 383
    , 387 (Pa.Super. 2010) (citations
    and quotation marks omitted).
    Notably absent from the elements is a requirement that the victim is
    aware of the legal requirements of the crime or is of the opinion that she has
    been subjected to an act that legally qualifies as “rape.” As the PCRA court
    noted, Ms. Dupree testified that she did not want to have sex with Appellant
    after he brutally murdered her lover, but Appellant had threatened her, saying
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    he would “do the same thing to you that I did to him.” PCRA Court Opinion,
    8/29/17, at 14. Further, he made his “request” for sex while brandishing the
    knife with which he had killed Mr. Goode. Ms. Dupree testified that she did
    not feel that she could say “no,” and that she was scared to scream because
    she feared Appellant would stab her. N.T., 9/24/13, at 156-57. As such, the
    evidence was sufficient to sustain Appellant’s rape conviction.        Eckrote,
    supra.
    Appellant next contends that trial counsel was ineffective in failing to
    cross-examine or impeach Ms. Dupree with the statement she gave to police
    on June 2, 2010, and that all other counsel were ineffective for not raising the
    claim. Appellant’s brief at 19-20. Initially, we note that the statement to
    which Appellant refers is not that of Ms. Dupree, but rather that of Officer Jose
    Viera reporting to the homicide division what Ms. Dupree had told him upon
    his arrival at the crime scene.      Appellant’s brief at Exhibit A.   Moreover,
    Appellant’s argument again hinges upon Ms. Dupree’s failure to indicate that
    she had been raped, a fact we have held lacks the import Appellant ascribes
    to it.
    At any rate, the PCRA court found Appellant’s claim lacked merit,
    offering the following analysis.
    The victim was extensively cross-examined by trial counsel.
    Further, “the mere fact that inconsistencies in testimony exist
    does not ipso facto prove perjury.” Commonwealth v. Dyson,
    
    378 A.2d 408
    , 411 n.5 (Pa. Super. 1977). However, it is not clear
    there is an actual inconsistency in the testimony. The fact that
    the victim stated she did not believe she had been raped does not
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    J-S26025-18
    mean that she was not raped. She stated that “he had forced me
    to have sex before in the relationship. I didn’t really know that
    that was rape.” N.T., 9/24/2013, at 172. . . . Further, the victim
    testified that the reason she did not tell police about the rape right
    away was due to her fear of petitioner. Id. at 166-168. Thus,
    there was clearly forcible compulsion, and no amount of cross
    examination of the witness would have changed the outcome of
    the trial. Therefore, neither counsel can be deemed ineffective for
    failing to preserve a meritless claim.
    PCRA Court Opinion, 8/29/17, at 16-17.
    The PCRA court’s determination is legally correct and supported by the
    record.   See N.T., 9/25/13 a.m., at 29-145 (cross-examination of Ms.
    Dupree); N.T., 9/25/13 p.m., at 16-50 (continued cross-examination of Ms.
    Dupree). Accordingly, Appellant’s argument entitles him to no relief from this
    Court. Sneed, supra at 1115 (“Counsel will not be deemed ineffective for
    failing to raise a meritless claim.”).
    Finally, Appellant maintains that trial counsel was ineffective for failing
    to present expert testimony to establish a diminished capacity defense.
    Appellant’s brief at 23-25. The PCRA court analyzed the claim thusly.
    In order to obtain relief for failure to call an expert witness,
    petitioner must demonstrate: (1) that the witness existed; (2)
    that the witnesses was available; (3) that counsel was informed
    of the existence of the witnesses or should have known of their
    existence; (4) that the witnesses were available and prepared to
    cooperate and testify on petitioner’s behalf; and, (5) that the
    absence of the testimony prejudiced petitioner. . . . [Appellant]
    did not comply with these requirements, as he does not even
    identify the potential expert witness. . . .
    Here, trial counsel presented evidence that [Appellant] had
    ingested PCP and alcohol, and this court instructed the jury that
    voluntary intoxication could reduce a charge of first[-]degree
    murder to third[-]degree murder. An expert would not have
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    demonstratively added to the evidence such that a different
    verdict would have resulted. Despite his alleged intoxication,
    [Appellant] understood the nature of his crime and its
    ramifications, disposed of one of the murder weapons, and then
    raped the victim. [Appellant’s] claims are factually incorrect and
    meritless.
    PCRA Court Opinion, 8/29/17, at 15-16.
    Once again, the PCRA court’s finding is supported by the record4 and
    evidences no error of law. Appellant points to no available expert who would
    have offered testimony to support the diminished capacity defense.
    Accordingly,     Appellant     has    not      convinced   us   that   relief   is   due.
    Commonwealth v. Miner, 
    44 A.3d 684
    , 688 (Pa.Super. 2012) (“It is an
    appellant’s burden to persuade us that the PCRA court erred and that relief is
    due.”).
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/7/18
    ____________________________________________
    4 See, e.g., N.T., 9/26/13, at 174-75 (counsel eliciting testimony about
    Appellant’s use of PCP, rum, and beer on the day in question, that Appellant
    was drunk and high, and that Appellant experienced hallucinations in such a
    state); N.T., 9/27/13, at 106-07 (instruction to jury that voluntary intoxication
    can render accused incapable of forming the specific intent to kill and that
    Commonwealth had burden to disprove the defense).
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