Com. v. Stays, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DUANE STAYS
Appellant No. 1412 EDA 2015
Appeal from the PCRA Order April 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008709-2008
CP-51-CR-0012245-2008
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 12, 2016
Duane Stays appeals pro se1 from the order that dismissed, without a
hearing, his first petition filed pursuant to the Pennsylvania Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Stays seeks relief from the
judgment of sentence to serve an aggregate term of imprisonment of 15 to
30 years’ imprisonment, imposed after he was found guilty by a jury of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Appointed counsel filed a Turner/Finley no merit letter and petition to
withdraw, and the PCRA court granted appointed counsel leave to withdraw
on April 10, 2015, in the same order that dismissed Stays’ PCRA petition.
See 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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aggravated assault, carrying a firearm without a license, possessing an
instrument of crime, and possessing a controlled substance. Stays argues
(1) “introduction into evidence of a prior inconsistent statement purportedly
identifying the petitioner made by a non-party declarant [Ivan Williams] who
was unavailable to testify at trial violated petitioner’s rights under the
[C]onfrontation [C]lause of the Sixth Amendment to the United States
Constitution[,]” and (2) “trial counsel was ineffective for not objecting to the
introduction of prior inconsistent statements, purportedly identifying the
petitioner made by a non-party declarant [Ivan Williams], who was
unavailable to testify at trial, because [the C]ommonwealth withheld
impeachment evidence at the preliminary hearing[.]” Stays’ Brief at 6.
Based upon the following, we affirm.
The evidence presented at trial was set forth by this Court in its
opinion issued in connection with Stays’ direct appeal, as follows:
The trial court, [t]he Honorable Rosalyn K. Robinson,
summarized the facts and procedural history of this case as
follows:
On the afternoon of June 22, 2008, two friends, Nasir
Farlow and Ivan Williams, rode in Williams’[] car to the
1600 block of South Frazier Street in West Philadelphia to
get some lunch. When they arrived at their destination,
Farlow exited the car to go into the store. Without
warning, three or four gunshots rang out and Farlow was
shot twice, once in each leg. Williams drove Farlow to the
hospital and was later questioned by police.
When police arrived on the scene, somebody told one of
the officers that some neighborhood children had kicked
shell casings into the sewer. When Detective Kenneth
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Flaville arrived on the scene at the 1600 block of South
Frazier Street, the sewer grate was lifted and a .40
caliber shell casing was indeed found inside the sewer.
Detective Flaville then questioned Ivan Williams about the
shooting. Although Williams initially claimed that he did
not know who had shot Nasir Farlow, he had a sudden
change of heart and divulged much information about the
shooter. He claimed that he had initially lied because he
was afraid of what might happen to him and his family.
Williams told Detective Flaville that the shooter was
named Wayne, also called “Homicide Wiz,” and provided
a physical description. Williams also said that Wayne and
Farlow had a prior disagreement and told [D]etective
Flaville where Wayne lived. Detective Flaville transcribed
the entire interview and had Williams read over it to
make sure that it was all correct. Williams then initialed
each page and signed his name at the end. At this same
interview, Williams also identified a photo of the current
defendant, Duane Stays, as Wayne, circled the picture,
and signed his initials.
Detective Flaville used this information to obtain a search
warrant for the apartment that Ivan Williams had said
Wayne lived in. Upon execution of that warrant, Duane
Stays was found in the apartment. A safe was also found
that included marijuana, money, and a Glock Model 27
handgun. The handgun was a .40 caliber handgun that
was later matched to the shell casing found in the sewer
at the crime scene. The police also recovered a pay stub
with Duane Stays’ name on it and the address of the
apartment that he was found in.
At the preliminary hearing, Ivan Williams’ testimony was
vastly different than his statement to the police. Williams
claimed that he did not know anybody in the courtroom,
that he had not seen anybody at the time of the shooting,
and that he did not sign the photo array that featured a
circled picture of Duane Stays. Duane Stays and his
defense counsel were present at this hearing but declined
to ask any questions on cross-examination.
Between the time of the preliminary hearing and trial,
Ivan Williams was murdered. … At trial, the court reporter
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from the preliminary hearing read Ivan Williams’[]
testimony from that hearing into the record. In addition,
Detective Flaville read Williams’[] statement from the
police interview at trial. Flaville also testified that Williams
had reviewed and signed the statement in its entirety.
Trial Court Opinion, 7/7/11, at 1-3.
The Commonwealth also called a ballistics expert from the
Philadelphia Police Department, Firearms Identification Unit, who
offered an expert opinion that, without “any doubt,” the shell
casing recovered from the storm sewer at 1600 South Frazier
Street had been fired from the Glock handgun found in Duane
Stays’ apartment. Stays offered no testimony on his own behalf
and presented neither fact nor character witnesses. …
Commonwealth v. Stays, 70 A.3d 1256, 1259–61 (Pa. Super. 2013).
Stays was convicted and sentenced, as stated above. On July 8, 2013, this
Court affirmed the judgment of sentence. See id. Stays did not file a
petition for allowance of appeal in the Pennsylvania Supreme Court.
On April 29, 2014, Stays filed this first PCRA petition. Counsel was
appointed and subsequently filed a no-merit letter and petition to withdraw
from representation. The PCRA granted counsel’s request to withdraw and,
after providing Pa.R.Crim.P. 907 notice, dismissed Stays’ petition. This
appeal followed.
The legal principles that guide our review are well settled:
“[A]s a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported
by the record and free of legal error.” Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297, 301 (Pa. 2011) (citation
omitted). A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record, such
determinations are binding on a reviewing court. Id., at 305
(citations omitted). To obtain PCRA relief, appellant must plead
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and prove by a preponderance of the evidence: (1) his
conviction or sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not
been previously litigated or waived, id., § 9543(a)(3); and (3)
“the failure to litigate the issue prior to or during trial ... or on
direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel[,]” id., § 9543(a)(4). An
issue is previously litigated if “the highest appellate court in
which [appellant] could have had review as a matter of right has
ruled on the merits of the issue[.]” Id., § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but failed to do
so before trial, at trial, ... on appeal or in a prior state
postconviction proceeding.” Id., § 9544(b).
To be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) he suffered prejudice as a result of
counsel’s error, with prejudice measured by whether there is a
reasonable probability the result of the proceeding would have
been different. Commonwealth v. Chmiel, 612 Pa. 333, 30
A.3d 1111, 1127 (Pa. 2011) (employing ineffective assistance of
counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
A.2d 973, 975-76 (Pa. 1987)). Counsel is presumed to have
rendered effective assistance. Commonwealth v. Ali, 608 Pa.
71, 10 A.3d 282, 291 (Pa. 2010). Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278 (Pa.
2006). Finally, because a PCRA petitioner must establish all the
Pierce prongs to be entitled to relief, we are not required to
analyze the elements of an ineffectiveness claim in any specific
order; thus, if a claim fails under any required element, we may
dismiss the claim on that basis. Ali, at 291.
Commonwealth v. Treiber, 121 A.3d 435, 444–445 (Pa. 2015).
Furthermore,
[a] PCRA court is only required to hold a hearing where the
petition, or the Commonwealth's answer, raises an issue of
material fact. Pa.R.Crim.P. 909(B)(1)-(2). When there are no
disputed factual issues, an evidentiary hearing is not required.
Id.; Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037,
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1042 (Pa. 1996) (citation omitted). If a PCRA petitioner’s offer of
proof is insufficient to establish a prima facie case, or his
allegations are refuted by the existing record, an evidentiary
hearing is unwarranted. See Commonwealth v. Hutchinson,
611 Pa. 280, 25 A.3d 277, 320 (Pa. 2011) (citation omitted);
Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 17 (Pa.
2011).
Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014).
The first issue presented by Stays in this PCRA appeal — that the trial
court’s admission of the prior inconsistent statement of Ivan Williams
violated his rights under the Confrontation Clause of the Sixth Amendment
— was raised and rejected on the merits by this Court in Stays’ direct
appeal. This Court held that an objection based upon the Confrontation
Clause would have been meritless because Mr. Williams was unavailable at
trial and there was an adequate opportunity to cross-examine him at the
preliminary hearing. See Stays, supra, 70 A.3d at 1264–1266. Therefore,
this claim is “previously litigated,” and does not present a cognizable claim
under the PCRA. See 42 Pa.C.S. § 9544(a)(2). See also 42 Pa.C.S. §
9543(a)(3).
Furthermore, because Stays’ ineffectiveness claim is based on the
above claim of trial court error that was rejected by this Court, Stays cannot
satisfy the arguable merit prong of the ineffectiveness test. See
Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005) (noting that a
derivative ineffectiveness claim “may fail on the arguable merit or prejudice
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prong for the reasons discussed on direct appeal, [even though] a Sixth
Amendment claim raises a distinct issue for purposes of the PCRA”).2
Accordingly, the PCRA court properly dismissed Stays’ PCRA petition
without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2016
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2
We agree with the Commonwealth that while Stays alleged in his PCRA
petition that “counsel did not have the opportunity to cross-examine as to
pending charge [sic],” he has failed to demonstrate that trial counsel was
unaware of any pending charges against Mr. Williams at the time of the
preliminary hearing. See Commonwealth’s Brief at 10.
We further note that the PCRA court, in denying Stays PCRA relief,
relied upon appointed counsel’s supplemental no-merit letter that advised
the PCRA court that “Williams’ prior charges for attempted murder, which
was [sic] withdrawn before trial, and drug-related crimes, which resulted in
convictions, would certainly have been inadmissible at trial because they
were neither related to Stays’ case nor crimen falsi that would have been
admissible for impeachment purposes.” PCRA Court Opinion, 12/23/2015,
at 3. The PCRA court agreed with appointed counsel’s analysis, see id., and
Stays does not offer any argument to this Court that the PCRA court erred in
accepting the no-merit letter analysis.
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