Com. v. Grimsley, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DARNELL GRIMSLEY,
Appellant No. 1256 EDA 2014
Appeal from the PCRA Order March 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0900701-2006
BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 15, 2015
Appellant, Darnell Grimsley, appeals pro se from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
This matter involves the murder of Devin Dunbar, which occurred on a
Philadelphia Street in the early evening of April 8, 2006. Just prior to the
murder, several people had seen Appellant walking down the street with
Mr. Dunbar. Witnesses also testified that they heard a single gunshot and
observed a man, fitting Appellant’s description, fleeing from the scene.
Mr. Dunbar died as a result of a single gunshot to the head. After an
extensive police investigation, a warrant was issued for Appellant’s arrest on
May 6, 2006. Appellant was apprehended later that day. Appellant was
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charged with first-degree murder and possession of an instrument of crime
(“PIC”).
Appellant went to trial on October 10, 2007, and on October 16, 2007,
the jury reported it was deadlocked on the charge of first-degree murder.
The trial judge then declared a mistrial. Appellant was subsequently retried.
On August 12, 2008, a jury convicted Appellant of first-degree murder and
PIC. On October 24, 2008, the trial court sentenced Appellant to serve a
term of life imprisonment for first-degree murder and a consecutive term of
incarceration of one to two years for the conviction of PIC. Appellant filed
post-sentence motions, which were denied. Appellant then filed a direct
appeal in which he challenged both the sufficiency and weight of the
evidence. On November 4, 2010, this Court affirmed Appellant’s judgment
of sentence, and our Supreme Court denied his petition for allowance of
appeal on May 25, 2011. Commonwealth v. Grimsley, 905 EDA 2009, 22
A.3d 1055 (Pa. Super. 2010) (unpublished memorandum), appeal denied,
21 A.3d 1190 (Pa. 2011).
On April 30, 2012, Appellant filed the instant PCRA petition. The PCRA
court appointed counsel, who subsequently filed a Turner/Finley letter1
and petitioned to withdraw from representation. On January 14, 2014, the
PCRA court issued its notice of intent to dismiss pursuant to Pa.R.Crim.P.
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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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907. Appellant filed a pro se response on February 18, 2014. On March 21,
2014, the PCRA court dismissed Appellant’s PCRA petition and granted PCRA
counsel’s petition to withdraw. This pro se appeal followed.
Appellant presents the following thirteen issues in his brief, which we
reproduce verbatim:
I. DID THE TRIAL COURT ERR BY DISMISSING THE POST-
CONVICTION RELIEF ACT PETITION PURSUANT TO COUNSEL’S
“NO-MERIT” LETTER THAT FAILED TO COMPORT WITH
APPELLANT STANDARD GOVERNING WITHDRAWAL OF
COUNSEL’S REPRESENTATION IN POST-DIRECT APPEAL
PROCEEDINGS?
II. WAS COUNSEL INEFFECTIVE FOR NOT MEETING WITH
CLIENT FACE TO FACE, FAILING TO INTERVIEW WITNESSES
AND FAILING TO CONDUCT ANY INVESTIGATION?
III. WAS COUNSEL INEFFECTIVE FOR FAILING TO CALL EXPERT
WITNESS WHICH COULD HAVE PROVING HIS CLIENT’S
INNOCENCE?
IV. WHETHER TRIAL COURT ERRED IN ALLOWING FAMILY
MEMBERS OF THE DECEASED TO BECOME WITNESSES FOR THE
STATE, AFTER SITTING IN THE COURT-ROOM AND HEARING
TESTIMONY FROM OTHER WITNESSES WHILE A
SEQUESTRATION ORDER WAS IN EFFECT.
V. WHETHER THE APPELLANT RECEIVED AN EFFECTIVE APPEAL
WITHOUT HAVING A COMPLETE COPY OF THE TRIAL
TRANSCRIPT.
VI. DID THE TRIAL COURT ERR IN ADMITTING INFLAMMATORY
PHOTOGRAPHS INTO EVIDENCE AFTER TRIAL COUNSEL
OBJECTED AT THE FIRST TRIAL THUS FAILING TO DO THE SAME
AT THE SECOND TRIAL?
VII. TRIAL COUNSEL FOR MR. GRIMSLEY (APPELLANT)
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING
TO INVESTIGATE MR. BARNES (‘STAR WITNESS’) CRIMINAL
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HISTORY, AND IN FAILING TO CALL WITNESSES: SAFIYA,
RAFIYA, PAMELA JOHNSON AND SANDY FOSTER AT TRIAL.
VIII. WAS P.C.R.A. COUNSEL INEFFECTIVE FOR FILING A NO
MERIT/FINELY LETTER?
IX. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A
RULE 600 VIOLATION CLAIM.
X. PROSECUTION MISCONDUCT FOR KNOWINGLY SOLICITING
FALSE TESTIMONY AND FAILING TO CORRECT THE ERROR AND
LIE.
XI. WAS APPELLATE COUNSEL INEFFECTIVE FOR FAILING TO
RAISE ANY CLAIMS REQUESTED BY THE APPELANT?
XII. WHETHER COMMONWEALTH PROVED ITS CASE BEYOND A
REASONABLE DOUBT.
XIII. WHETHER THE VERDICT IS AGAINST THE WEIGHT OF
EVIDENCE.
Appellant’s Brief at 5-6.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Appellant first argues that the PCRA court erred in dismissing his PCRA
petition pursuant to appointed counsel’s “no merit” letter. Appellant’s Brief
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at 13-14. Appellant asserts that PCRA counsel never reviewed or
investigated any of the claims that Appellant raised in the PCRA petition,
misstated most of the claims that Appellant wished to have raised, and did
not explain why the issues raised were meritless. Id.
The PCRA court addressed Appellant’s issue in this regard as follows:
Following receipt of the 907 Notice of Intent to Dismiss,
[Appellant] filed a response alleging that PCRA counsel did not
conduct a thorough review of his pro se claims claiming that he
failed to list and address several of [Appellant’s] claims that
were clearly raised in the PCRA petition. However, the [PCRA]
Court’s review, demonstrated that PCRA counsel addressed each
of these issues in his Finley letter and fully explained why each
claim lacked merit. While PCRA counsel may have phrased these
complaints differently, he adequately addressed each of them.
After its independent review of [Appellant’s] complaints in the
pro se petition, the response to the 907 notice, and the record,
the [PCRA] Court found that PCRA counsel had complied with the
requirements of Finley, agreed with PCRA counsel’s assessment
that [Appellant’s] claims lacked merit, and permitted PCRA
counsel to withdraw from representation.
PCRA Court Opinion, 6/18/14, at 7. Likewise, we have reviewed the certified
record before us, and we discern no error on the part of the PCRA court in
dismissing the PCRA petition and granting PCRA counsel permission to
withdraw. Thus, we conclude that Appellant’s first issue lacks merit.
In his second issue, Appellant argues that his trial counsel was
ineffective. Appellant’s Brief at 14. Specifically, Appellant claims that, after
the first trial ended in a mistrial, trial counsel was ineffective when he:
failed to prepare “in any manner” for trial, including a failure to
meet with [A]ppellant face-to-face, failing to interview
witnesses, and failing to conduct investigation.
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Id.
In order to succeed on a claim of ineffective assistance of counsel, an
appellant must demonstrate (1) that 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. Pierce, 786 A.2d 203, 213 (Pa. 2001). We have
explained 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, with regard to the second prong,
we have reiterated that 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 (Pa. 1981)).
Our Supreme Court has long 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. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.
1967)) (emphasis in original).
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In addition, we are mindful that prejudice requires proof that there is a
reasonable probability that, but for counsel’s error, the outcome of the
proceeding would have been different. Pierce, 786 A.2d at 213. “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,
when it is clear that a petitioner has failed to meet the prejudice prong of an
ineffective assistance of counsel claim, the claim may be disposed of on that
basis alone, without a determination of whether the first two prongs have
been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.
2005).
It is presumed that the petitioner’s counsel was effective, unless the
petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,
1177 (Pa. 1999). 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) (citing
Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).
Furthermore, claims of ineffective assistance of counsel are not self-
proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).
“[A] post-conviction petitioner must, at a minimum, present argumentation
relative to each layer of ineffective assistance, on all three prongs of the
ineffectiveness standard….” Commonwealth v. D’Amato, 856 A.2d 806,
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812 (Pa. 2004). “[A]n underdeveloped argument, which fails to
meaningfully discuss and apply the standard governing the review of
ineffectiveness claims, simply does not satisfy Appellant’s burden of
establishing that he is entitled to relief.” Commonwealth v. Bracey, 795
A.2d 935, 940 n.4 (Pa. 2001).
The PCRA court addressed this claim of ineffective assistance of trial
counsel as follows:
Appellant further complains that trial counsel never came
to see him to prepare for trial. Appellant’s own submission
contradicts this claim. Trial counsel visited [A]ppellant in prison
on September 5, 2007 and counsel’s investigator visited with
[A]ppellant in prison on October 1, 2007. (Exhibit A, Petitioner’s
Response to 907 Notice).3 Thereafter, [A]ppellant’s first trial
ended in a mistrial. Moreover, [A]ppellant has not alleged any
beneficial information or issue that counsel should have
presented, had counsel come to see him more often, which
would have changed the outcome of the trial. Commonwealth v.
Elliot, 80 A.3d 415, 432 (Pa. 2013)(citing Commonwealth v.
Travaglia, 541 Pa. 108, 661 A.2d 352, 357 (1995)) (requiring a
defendant to demonstrate prejudice in an ineffectiveness claim
by demonstrating that []but for the act or omission in question,
the outcome of the proceedings would have been different, and
noting that a claim of ineffectiveness could be denied if the
petitioner fails to satisfy any one of the three prongs).
Accordingly, this claim fails.
3
The names of both trial counsel and the
investigator appear prior to the date [A]ppellant
indicates in his exhibit, however no date is
associated with the names.
PCRA Court Opinion, 6/18/14, at 5-6 (footnote in original).
Even if we were to presume that in his appellate brief to this Court
Appellant has presented proper argument pertaining to the first two prongs
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of the ineffectiveness standard, we must conclude that Appellant has offered
no relevant discussion addressing the third prong, i.e., that the alleged
ineffectiveness of counsel in not adequately meeting with Appellant face-to-
face after the first trial ended in a mistrial caused Appellant prejudice.
Indeed, Appellant has failed to establish that, but for trial counsel’s alleged
error, the outcome of the proceeding would have been different. Pierce,
786 A.2d at 213. As we stated in Baker, when a petitioner has failed to
meet the prejudice prong of an ineffective assistance of counsel claim, the
claim may be disposed of on that basis alone, without a determination of
whether the first two prongs have been met. Baker, 880 A.2d at 656.
Accordingly, Appellant’s underdeveloped argument, which fails to
meaningfully discuss the prejudice prong governing the review of
ineffectiveness claims, does not satisfy the burden of establishing that
Appellant is entitled to relief. Bracey, 795 A.2d at 940 n.4. Thus, this issue
does not warrant relief.
In his third issue Appellant again argues that trial counsel was
ineffective. Appellant’s Brief at 15. In this instance, Appellant avers that
trial counsel was ineffective for failing to call a crime scene expert as a
witness to dispute whether the victim “was shot on the left side of the back
of the head.” Id. Appellant concludes that “[t]rial counsel was ineffective
for failing to consult with or call [an] expert witness to explain there is no
way that [A]ppellant committed this crime.” Id.
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Regarding a claim of trial counsel ineffective assistance for failure to
call an expert witness, this Court has stated the following:
In order to demonstrate counsel’s ineffectiveness for failure to
call a witness, a petitioner must prove that “the witness existed,
the witness was ready and willing to testify, and the absence of
the witness’ testimony prejudiced petitioner and denied him a
fair trial.” [Commonwealth v.] Johnson, 27 A.3d [244,] 247
[(Pa. Super. 2011)] (internal citation omitted). In particular,
when challenging trial counsel’s failure to produce expert
testimony, “the defendant must articulate what evidence was
available and identify the witness who was willing to offer such
evidence.” Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d
726, 745 (Pa. 2004) (internal citation omitted).
Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013).
Our review of the record reflects that Appellant failed to identify his
expert witness or provide an affidavit that this alleged expert was available
to testify on Appellant’s behalf. Lacking such evidence of an available
witness, the PCRA court had no reason to believe that any expert would
have testified in the manner that Appellant alleges. Thus, we discern no
error on the part of the PCRA court in declining to grant Appellant relief on
this ineffective assistance of counsel claim.
In his fourth issue Appellant argues that trial counsel was ineffective
for failing to object to trial court errors regarding violations of sequestration
orders. Appellant’s Brief at 15. Appellant’s complete argument in this
regard is as follows:
The appellant avers that counsel was ineffective for failing
to object and raise claims on the trial court errors and violation
of sequestration order. Thus, after starting trial and after the
sequestration order, the Commonwealth went to grieving family
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members of the deceased and obtained statements from them.
And the next day of trial, allowed them to get on the witness
stand and testify after hearing all the testimony of the other
witnesses. See; N/T 10/11/2007, pp. 15, 89-92, and N/T
8/08/2008 pp. 86, 187-188. And see; ...Com. v. Pierce, 537 Pa.
514, 645 A.2d 189, (Pa. 1994); Spicer v. Warden of Roxbury
Corr., 31 F. Supp. 2d 509 CD.Md (1998). Trial Judge even
admitted that there was a order violation. See; N/T
10/11/2007, pp. 15-16, 92.
Id. (verbatim).
Assuming for the sake of argument that there is merit to the
underlying claim that trial counsel should have objected to the violation of a
sequestration order, we observe that Appellant has failed to establish, let
alone make an allegation, that he has suffered any prejudice. As we
previously stated, claims of ineffective assistance of counsel are not self-
proving. Wharton, 811 A.2d at 986. Accordingly, Appellant’s issue fails.
In his fifth issue Appellant argues that trial counsel was ineffective for
failing to object to remarks made by the prosecution. Appellant’s Brief at
16. Specifically, Appellant presents the following argument:
The appellant avers that counsel was ineffective for failing
to object to the prejudicial remarks made by the prosecutor
during the playing of the tape-recording which the prosecutor
kept pausing to make inflammatory remarks to inflame the
minds of the jurors. Appellant avers that he is unable to address
exactly what the prosecutor said due to the [loss of transcripts].
See, N/T 8/08/08, pg. 202, where it only states the time the
recording was played (2.24pm). Important/crucial portion of the
trial transcripts are missing. See as follows...; Com. v. Shields,
383 A.2d 844, 477 Pa. 105 (Pa. 1978).
Id. (verbatim).
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Appellant fails to state which remarks by the prosecutor were
prejudicial, and it is his responsibility to do so. Again, claims of ineffective
assistance of counsel are not self-proving. Wharton, 811 A.2d at 986.
Appellant’s underdeveloped argument that does not discuss the prejudice
prong governing the review of ineffectiveness claims does not satisfy the
burden of establishing relief. Bracey, 795 A.2d at 940 n.4. Accordingly, we
must conclude that Appellant has failed to establish his claim that trial
counsel was ineffective in this regard. Consequently, Appellant’s issue fails.
In his sixth issue Appellant argues that the trial court erred in
permitting the jury to view an inflammatory photograph of the victim’s
gunshot wound. Appellant’s Brief at 16-17. Appellant contends that the trial
court improperly overruled trial counsel’s objection and incorrectly allowed
jurors to see a “gruesome photo” of the deceased victim’s head. Id.
We observe the following:
“to be entitled to PCRA relief, a petitioner must plead and prove,
inter alia, that the allegation of error has not been previously
litigated or waived.” Commonwealth v. Berry, 877 A.2d 479,
482 (Pa. Super. 2005), appeal denied, 917 A.2d 844 (Pa. 2007).
“An issue is waived if it could have been raised prior to the filing
of the PCRA petition, but was not.” Id. These statements in
Berry are derived directly from Section 954[4](b) of the PCRA,
which provides that “an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction
proceeding.” 42 Pa.C.S. § 954[4](b).
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Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007). Thus,
where issues presented in a PCRA petition could have been raised on direct
appeal and were not, they are waived. Id.
Our review of the record reflects that this issue asserting trial court
error in publishing a photograph to the jury could have been raised on direct
appeal but was not. Moreover, it is not a claim which Appellant assigns as
error to counsel for failure to preserve it. Accordingly, we conclude that this
issue is waived. Turetsky.
In his seventh issue, Appellant presents two claims of trial counsel
ineffective assistance: failing to properly investigate a Commonwealth
witness’s criminal history and failing to call various witnesses on Appellant’s
behalf. Appellant’s Brief at 17-18. For the following reasons, these issues
do not merit relief.
Initially, Appellant contends that trial counsel was ineffective for failing
to properly investigate the criminal history of Commonwealth witness Eric
Barnes. We are mindful that Pa.R.A.P. 302(a) provides that “issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). Hence, only claims properly presented in the
lower court are preserved for appeal. See Commonwealth v. Jones, 912
A.2d 268, 278 (Pa. 2006) (explaining that an issue is waived where it was
not presented in the original or amended PCRA petition below). Instantly,
our review of the certified record reflects that Appellant failed to present this
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issue of ineffective assistance of trial counsel to the PCRA court in his PCRA
pleadings. Therefore, we are constrained to conclude that the issue is
waived due to Appellant’s failure to present it to the PCRA court.
In addition, Appellant argues that trial counsel was ineffective for
failing to call various witnesses on Appellant’s behalf. Specifically, Appellant
contends that trial counsel should have called “Safiya,” “Rafiya,” Pamela
Johnson, and Sandy Foster. Appellant’s Brief at 17-18.
To prevail on an allegation of trial counsel’s ineffectiveness for failure
to call a witness, an appellant must prove: “(1) the witness existed; (2) the
witness was available; (3) trial counsel was informed of the existence of the
witness or should have known of the witness’s existence; (4) the witness
was prepared to cooperate and would have testified on appellant’s behalf;
and (5) the absence of the testimony prejudiced appellant.”
Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations
omitted). Trial counsel’s failure to call a particular witness does not
constitute ineffective assistance without some showing that the absent
witness’s testimony would have been beneficial or helpful in establishing the
asserted defense. Id. Appellant must demonstrate how the testimony of
the uncalled witness would have been beneficial under the circumstances of
the case. Id. In addition, counsel is not ineffective for failing to call a
witness whose testimony would have been merely cumulative.
Commonwealth v. Meadows, 787 A.2d 312, 320 (Pa. 2001). Further,
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ineffectiveness for failing to call a witness will not be found where a
petitioner fails to provide affidavits from the alleged witnesses indicating
availability and willingness to cooperate with the defense. Commonwealth
v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).
In the instant matter, our review of the certified record reflects that
Appellant did not include an affidavit from any of the alleged witnesses
indicating their availability and willingness to cooperate with the defense at
trial in any of his pro se PCRA filings.2 This omission alone is grounds for
rejecting his claim. O’Bidos.
In his eighth issue Appellant raises a claim of PCRA counsel ineffective
assistance. Appellant’s Brief at 18. Appellant asserts that his PCRA counsel
was ineffective for choosing to file a Turner/Finley “no merit letter.” Id.
Instantly, Appellant’s argument in this regard amounts to mere
allegations of PCRA counsel ineffective assistance and lacks any discussion of
the three prongs of ineffective assistance. Again, as we previously stated,
claims of ineffective assistance of counsel are not self-proving. Wharton,
811 A.2d at 986. A PCRA petitioner must present argumentation relative to
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2
We note that in his appellate brief filed with this Court, Appellant has
included a copy of an affidavit from “Safiya Bint-Ishmawiyl.” Appendix to
Appellant’s Brief. However, items appended to an appellate brief but not
part of the certified record on appeal are not properly before us for review
and cannot be considered. See Commonwealth v. Crawley, 663 A.2d
676, 681 n.9 (Pa. 1995) (reiterating that where an item it has not been
offered into evidence and is therefore not part of the official record, we
cannot properly consider it on appeal).
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all three prongs of the ineffectiveness standard. D’Amato, 856 A.2d at 812.
Accordingly, Appellant’s undeveloped claim of PCRA counsel ineffective
assistance fails.
In his ninth issue Appellant again argues that his trial counsel was
ineffective. Appellant’s Brief at 19. In this issue, Appellant alleges that trial
counsel was ineffective for failing to raise a claim of a Rule 600 violation.
Id.
Again, Pa.R.A.P. 302(a) provides that “issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a). Only claims properly presented in the lower court are
preserved for appeal. See Jones, 912 A.2d at 278 (explaining that an
issue is waived where it was not presented in the original or amended PCRA
petition below). Instantly, our review of the certified record reflects that
Appellant failed to present this issue of ineffective assistance of trial counsel
to the PCRA court in any of his PCRA pleadings. Hence, we conclude that
the issue is waived due to Appellant’s failure to present the claim to the
PCRA court.
In his tenth issue Appellant argues that the prosecution committed
misconduct. Appellant’s Brief at 19. Specifically, Appellant alleges that the
prosecutor knowingly solicited false testimony from Eric Barnes pertaining to
Mr. Barnes’s criminal record and failed to correct the witness’s misstatement
regarding his criminal record. Id.
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As mentioned earlier in this memorandum, “An issue is waived if it
could have been raised prior to the filing of the PCRA petition, but was not.”
Turetsky, 925 A.2d at 879. Section 9544(b) of the PCRA provides that “an
issue is waived if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b). Consequently, where
issues presented in a PCRA petition could have been raised on direct appeal
and were not, they are waived. Turetsky, 925 A.2d at 879.
This issue claiming prosecutorial misconduct concerning the testimony
of Mr. Barnes could have been raised on direct appeal, but was not.
Therefore, we conclude that this issue is waived. Turetsky.
In his eleventh issue Appellant argues that his appellate counsel was
ineffective for failing to raise “any claims requested by the appellant.”
Appellant’s Brief at 20. Again, a post-conviction petitioner must, at a
minimum, present argumentation on all three prongs of the ineffectiveness
standard. D’Amato, 856 A.2d at 812.
Our review reflects that Appellant has failed to develop this allegation
of ineffective assistance of appellate counsel beyond bald claims concerning
a failure to raise unspecified issues requested by Appellant. Appellant has
failed to develop an argument concerning whether appellate counsel had a
reasonable basis for the failure to present claims, or how Appellant suffered
prejudice as a result of appellate counsel’s alleged inaction. Thus, we
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conclude that Appellant has failed to establish his claim that appellate
counsel was ineffective.
In his twelfth issue Appellant argues that there was insufficient
evidence to support his conviction. Appellant’s Brief at 20-22. Appellant
asserts that the Commonwealth failed to prove its case as to all of his
charges, but specifically, Appellant targets his conviction for first-degree
murder.
As we previously observed, to be entitled to PCRA relief, a petitioner
must plead and prove that the allegation of error has not been previously
litigated. Berry, 877 A.2d at 482. A claim is previously litigated under the
PCRA if the highest appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S.
§ 9544(a)(2).
Our review reflects that, on direct appeal to this Court, Appellant
specifically challenged the sufficiency of the evidence supporting his
conviction of first-degree murder, and this Court thoroughly addressed the
claim. Grimsley, 905 EDA 2009, 22 A.3d 1055 (unpublished memorandum
at 8-14). In Appellant’s direct appeal, we ultimately concluded that
“[A]ppellant’s conviction for first degree murder was supported by the
evidence.” Id. at 14. Therefore, because the challenge to the sufficiency of
the evidence was previously litigated on direct appeal, it is not cognizable for
our review.
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In his final issue Appellant attempts to argue that his conviction of
first-degree murder was against the weight of the evidence. Appellant’s
Brief at 22. However, this claim is not cognizable under the PCRA.
In order to be entitled to relief under the PCRA, a petitioner first must
establish that his conviction or sentence resulted from one or more of the
errors found in 42 Pa.C.S. § 9543(a)(2). Commonwealth v. Keaton, 45
A.3d 1050, 1060 (Pa. 2012). Section 9543(a)(2) provides as follows:
(a) General rule.--To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
* * *
(2) That the conviction or sentence resulted from
one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or
laws of the United States which, in the
circumstances of the particular case, so
undermined the truth-determining
process that no reliable adjudication of
guilt or innocence could have taken
place.
(ii) Ineffective assistance of counsel
which, in the circumstances of the
particular case, so undermined the truth-
determining process that no reliable
adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced
where the circumstances make it likely
that the inducement caused the
petitioner to plead guilty and the
petitioner is innocent.
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(iv) The improper obstruction by
government officials of the petitioner’s
right of appeal where a meritorious
appealable issue existed and was
properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial
of exculpatory evidence that has
subsequently become available and
would have changed the outcome of the
trial if it had been introduced.
(vii) The imposition of a sentence greater
than the lawful maximum.
(viii) A proceeding in a tribunal without
jurisdiction.
42 Pa.C.S. § 9543(a)(2).
Appellant’s issue challenges the weight of the evidence upon which his
conviction is based. This claim does not fit into any of the categories
delineated in section 9543(a)(2). Accordingly, it is not cognizable under the
PCRA and will not afford Appellant relief.
Moreover, even if the issue were cognizable under the PCRA, as we
previously observed, Pa.R.A.P. 302(a) provides that “issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a). See Jones, 912 A.2d at 278 (explaining that an issue is
waived where it was not presented in the original or amended PCRA petition
below). Instantly, our review of the certified record reflects that Appellant
failed to present this issue to the PCRA court in his various PCRA pleadings.
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Therefore, we are constrained to conclude that, had this claim been
cognizable under the PCRA, the issue would be waived due to Appellant’s
failure to present the claim to the PCRA court.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
____________________________________________
3
Our review reflects that, on direct appeal, Appellant raised a challenge to
the weight of the evidence. However, in addressing Appellant’s direct
appeal, we determined that the issue was waived for failure to present the
issue to the trial court as required under Pa.R.Crim.P. 607(A). Grimsley,
905 EDA 2009, 22 A.3d 1055 (unpublished memorandum at 14). Thus, we
note that had this issue been presented as a claim of ineffective assistance
of counsel for failing to properly preserve a weight of the evidence challenge
for direct appeal, it could be cognizable under the PCRA. See 42 Pa.C.S.
§ 9543(a)(2)(ii). However, Appellant does not allege ineffective assistance
of counsel in this regard.
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