Com. v. Jones, M. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
v. :
:
MAURICE JONES, : No. 854 EDA 2014
:
Appellant :
Appeal from the PCRA Order, March 4, 2014,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0000354-2011
BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2015
Appellant appeals the order dismissing his first petition brought
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 to
9546. Finding no merit in the issue raised on appeal, we affirm.
On January 10, 2012, appellant was found guilty following a bench
trial of robbery-threatening serious bodily injury, carrying firearms without a
license, and resisting arrest. The charges against appellant arose from an
incident that occurred shortly before midnight on December 31, 2010, in
Upper Darby. As the victim was returning home from work, he heard
appellant behind him and turned to look. He described appellant as
dark-skinned, with braids and a hoodie. (Notes of testimony, 12/15/11 at
8.) The victim stated that he turned around three times to observe
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appellant. (Id. at 29.) The victim made an in-court identification of
appellant. (Id. at 8.)
During the robbery, appellant took an iPod, a cell phone, and some
money from the victim. (Id. at 14.) After the robbery, the victim went to
his house, which was just ten feet from where the incident occurred. (Id. at
16.) The victim’s mother called the police, who arrived in two to five
minutes. (Id.) The police had the victim get in their car and proceeded to
drive around the neighborhood. (Id. at 17.) As they approached a group of
kids, the victim said, “I think that’s them.” (Id.) A police officer testified
that they called the victim’s cell phone, that appellant answered the phone,
and that the victim identified appellant as the perpetrator. (Id. at 35.)1
At this point, the police car made a U-turn, and appellant fled. The
police gave pursuit and the officer testified that he never lost sight of
appellant. (Id. at 17-18, 40.) After police caught appellant, they took the
victim to the scene where the victim identified appellant as the perpetrator.
(Id. at 19.) The victim noted that appellant matched his description. (Id.)
No gun or contraband of the victim was found on appellant. (Id. at 40.)
Prior to trial, appellant’s counsel filed a Motion for a Line-up which the
court denied following a review of the notes of testimony from the
preliminary hearing and the argument of counsel. On April 12, 2012,
appellant was sentenced to 6 to 13 years’ imprisonment followed by one
1
The officer also made an in-court identification of appellant. (Id. at 36.)
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year of probation. No direct appeal was filed. On March 27, 2013, appellant
timely filed the instant PCRA petition pro se. Counsel was appointed and an
amended petition was filed. On January 9, 2014, an evidentiary hearing was
held at which appellant and his trial counsel testified. As noted, the petition
was dismissed and appellant now brings this timely appeal.
On appeal, appellant raises a single issue, contending that counsel was
ineffective in failing to file a direct appeal upon request, or in failing to
adequately consult with appellant as to the merits of an appeal.
Our standard of review for an order denying post-conviction 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.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.Moreover, as appellant’s issue on appeal is stated in terms of
ineffective assistance of counsel, we also note that appellant is required to
make the following showing in order to succeed with such a claim: (1) that
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) that, but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
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prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
Preliminarily, we note that both appellant and trial counsel,
Howard Anmuth, Esq., testified at the PCRA hearing. The PCRA court has
made an on-the-record finding that the testimony of appellant was not
credible and that the testimony of Attorney Anmuth was credible. (Trial
court opinion, 11/26/14 at 2-4.)2 We are bound by the credibility
determinations of the court where they are supported by the record.
Commonwealth v. Stewart, 84 A.3d 701, 711 (Pa.Super. 2013), appeal
denied, 93 A.3d 463 (Pa. 2014). Consequently, we cannot accept
appellant’s account and must accept Attorney Anmuth’s testimony in
resolving appellant’s issue on appeal.
In his issue on appeal, appellant argues that counsel was ineffective in
failing to file a direct appeal or failing to consult. Appellant claims he wanted
Attorney Anmuth to appeal the denial of the Motion for a Line-up. We note
the following guide to our inquiry in matters pertaining to the alleged failure
to file a direct appeal upon request:
“Before a court will find ineffectiveness of counsel for
failing to file a direct appeal, the defendant must
prove that he requested an appeal and that counsel
2
The pages of the trial court opinion are unnumbered; the numbers given
are by our count.
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disregarded that request.” Commonwealth v.
Knighten, 742 A.2d 679, 682 (Pa.Super.1999),
appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).
The rule set out by Knighten was
subsequently modified by more recent decisions,
particularly Roe v. Flores-Ortega, 528 U.S. 470,
480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and
its Pennsylvania expression, Commonwealth v.
Touw, 781 A.2d 1250, 1254-1255 (Pa.Super.2001).
These cases impose a duty on counsel to adequately
consult with the defendant as to the advantages and
disadvantages of an appeal where there is reason for
counsel to think that a defendant would want to
appeal. The failure to consult may excuse the
defendant from the obligation to request an appeal
under Knighten, such that counsel could still be
found to be ineffective in not filing an appeal even
where the defendant did not request the appeal.
Pursuant to Flores-Ortega and Touw,
counsel has a constitutional duty to consult with a
defendant about an appeal where counsel has reason
to believe either (1) that a rational defendant would
want to appeal (for example, because there are non-
frivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to
counsel that he was interested in appealing.
Commonwealth v. McDermitt, 66 A.3d 810, 814-815 (Pa.Super. 2013).
At the hearing, Attorney Anmuth testified that he habitually makes it a
point to discuss appeals options with clients. (Notes of testimony, 1/9/14 at
29.) He stated that whenever a client asks for an appeal, he instructs them
to contact the appeals department of the Public Defender’s Office. (Id.) If
the client writes him a letter, he forwards it to the appeals department. (Id.
at 30.) While Attorney Anmuth could not testify with 100% accuracy that
appellant did not request an appeal, he stated that if appellant had, he
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would have told him to contact the appeals department. (Id. at 35.)
Attorney Anmuth stated that appellant never wrote him a letter or e-mail, or
telephoned him requesting an appeal. (Id.) Attorney Anmuth did opine that
appellant did not have any rational, non-frivolous grounds for an appeal.
(Id. at 32.)
We are bound by the PCRA court’s credibility findings, and we must,
therefore, conclude that appellant did not request an appeal. As for
Attorney Anmuth’s obligation to consult with appellant, we also find that
counsel had no duty arising under Flores-Ortega and Touw. There simply
was no issue as to identification. The victim never wavered, hesitated, or
equivocated in his identification, and he identified appellant on multiple
occasions. Moreover, appellant was apprehended minutes after the crime
and matched the victim’s description. Finally, police also testified as to
appellant’s identity. There was no reason why Attorney Anmuth should have
believed that appellant wanted an appeal or that an appeal of the order
denying a line-up was anything other than frivolous. We find no merit here.
Accordingly, we will affirm the order dismissing appellant’s PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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