Com. v. Scott, E. ( 2019 )

J-S10033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EDWARD SCOTT, :
:
Appellant : No. 1455 EDA 2018
Appeal from the PCRA Order April 6, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006350-2011
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 15, 2019
Appellant, Edward Scott, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
May 18, 2011, Appellant and an accomplice robbed Victim at gunpoint, and
Appellant fled the scene in Victim’s vehicle. A jury convicted Appellant on
February 7, 2013, of one count each of robbery, conspiracy to commit
robbery, robbery of a motor vehicle, and possession of an instrument of crime.
On July 2, 2013, the court sentenced Appellant to an aggregate term of ten
(10) to twenty (20) years’ incarceration, plus ten (10) years’ probation. The
sentence included a mandatory minimum sentence under 42 Pa.C.S.A. § 9714
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10033-19
(governing sentences for second and subsequent offenses).
This Court affirmed the judgment of sentence on July 29, 2015, and our
Supreme Court denied allowance of appeal on December 1, 2015. See
Commonwealth v. Scott, 125 A.3d 464 (Pa.Super. 2015) (unpublished
memorandum), appeal denied, 633 Pa. 778, 126 A.3d 1284 (2015).
On February 26, 2016, Appellant filed pro se his first PCRA petition. The
PCRA court appointed counsel, who filed an amended petition on November
23, 2016. Following a hearing on March 24, 2017, the court issued notice of
its intent to dismiss Appellant’s petition, per Pa.R.Crim.P. 907. On April 10,
2017, despite having counsel, Appellant filed a pro se motion for an extension
of time to respond to the Rule 907 notice, which the court granted. On August
10, 2017, Appellant filed his pro se response. Appellant’s counsel also filed a
response to the Rule 907 notice on March 20, 2018. The PCRA court dismissed
Appellant’s petition on April 6, 2018, and on April 13, 2018, Appellant filed a
timely notice of appeal. The court did not order Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),
and Appellant did not file one.
Appellant raises the following issue for our review:
WAS COUNSEL INEFFECTIVE FOR FAILING TO RAISE THE
ISSUE OF…APPELLANT’S BEING SUBJECT TO AN ILLEGAL
MANDATORY MINIMUM SENTENCE?
(Appellant’s Brief at 9).
Our standard of review of the denial of a PCRA petition is limited to
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J-S10033-19
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 do not give the same deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Traditionally, credibility issues are resolved by the trier of fact who had the
opportunity to observe the witnesses’ demeanor. Commonwealth v. Abu-
Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120
S.Ct. 41, 145 L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility
at PCRA hearings, and its credibility determinations should be provided great
deference by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329,
356-357, 966 A.2d 523, 539 (2009).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Daniel J.
Anders, we conclude Appellant’s issue merits no relief. The PCRA court opinion
comprehensively discusses and properly disposes of the question presented.
(See PCRA Court Opinion, filed May 25, 2018, at 2-6) (finding: prior
convictions are sentencing factors, not elements of offenses; when Appellant
committed underlying offense, he had prior conviction for voluntary
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manslaughter, another crime of violence; therefore, sentence imposed under
42 Pa.C.S.A. § 9714 was not unconstitutional, and his ineffectiveness claim
lacks arguable merit). The record supports the PCRA court’s decision.
Accordingly, we affirm based on the PCRA court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/19
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Circulated 03/20/2019 04:46 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
I L -ED
TRIAL DIVISION-CRIMINAL
COMMONWEALTH OF PENNSYLVANIA 1455 EDA 2018 OFFICE OF JUDICIAL
RECORDS
CRIMINAL DIVISION
VS. CP-51-CR-006350
CP-51-CRA006350-2011 Comm. v.Scott, Edward
K
EDWARD SCOTT
OPINION 1111111111111111 1111 1 111
8114537561
Defendant Edward Scott was convicted of robbery, conspiracy to commit robbery of a
motor vehicle and possession of an instrument of crime, He was sentenced to 10 to 20 years of
incarceration, Defendant challenged his judgment of sentence on a direct appeal, which the
Superior Court affirmed. Commonwealth v. Edward Scott, 2286 EDA 2013, filed July 29, 2015.
On February 26, 2016, Defendant filed a timely petition pursuant to the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S. § 9541, et seq.; court -appointed counsel subsequently filed an
amended PRCA petition. The PCRA court dismissed Defendant's PRCA petitions as without
merit. For the reasons stated herein, the Superior Court should affirm the PCRA court's order
dismissing Defendant's PCRA petitions.
FACTUAL AND PROCEDURAL BACKGROUND
the
On May 18, 2011, Defendant and his co-defendant approached William Jackson on
1300 block of Narragansett Street in Philadelphia. The co-defendant pulled out a black and silver
to get
semi -automatic handgun and pointed it in Jackson's face. The co-defendant told Jackson
on the ground, Lay face -down on his stomach, and hand over his money; Jackson complied, The
co-defendant then put the gun to the center of the back of Jackson's head. As the co-defendant
a
did this, Defendant was standing directly behind Williams. The co-defendant then removed
wallet from Jackson's back pocket, and told Defendant to jump into Jackson's vehicle and drive
off.
1
co-defendant and his
Jackson called 911 and provided descriptions of Defendant, the
stopped Defendant, who was
vehicle in which Defendant drove off. Minutes later, police officers
Police brought Jackson to
observed walking away from the driver's side of Jackson's vehicle.
identified Defendant based
Defendant to make an on -scene identification. Jackson positively
testified that he had no
upon his face, skin color, height, stature and clothing. At trial, Jackson
stole his vehicle. See generally
doubt that he correctly identified Defendant as the person who
Trial Court Opinion, October 16, 2014 at 1-4.
which the Superior
Defendant challenged his judgment of sentence on a direct appeal,
Court affirmed. Commonwealth v. Edward Scott, 2286 EDA 2013, filed July 29, 2015. On
-appointed counsel
February 26, 2016, Defendant filed a timely PCRA petition. Court
2016.
subsequently filed an amended PRCA petition on November 23,
PCRA petitions,
On March 24, 2017. the PCRA court held a hearing on Defendant's
and issued a Rule 907
during which it concluded that his PCRA claims were without merit
time to file a response to the Rule 907
Notice. On April 10, 2017, Defendant requested additional
the Rule 907 Notice. On March 20,
Notice. On August 10, 2017, Defendant filed objections to
objections. On April 6,
2018, court -appointed counsel filed a letter response to Defendant's
PCRA claims as without merit.
2018, the PCRA court formally dismissed Defendant's
Defendant then filed this timely appeal.
DISCUSSION
court erred in dismissing his claims as
On appeal, Defendant will argue that the PCRA
failing to (1) raise the constitutionality of
without merit because his trial counsel was ineffective for
pursuant to Pa.R.Crim.P. 600(g), (3)
a mandatory sentence, (2) litigate a motion to dismiss
and (4) properly advise Defendant of his right
interview, investigate and call several alibi witnesses,
2
to testify at trial. Defendant's Amended PCRA Petition, dated 11/23/2016, and
Defendant's
Response and Objections to Rule 907 Notice, dated 8/10/2017.
1. The Standard of Review of Claims of Ineffectiveness in PCRA Petitions
In Commonwealth v. C'ax, 983 A.2d 666 (Pa. 2009), our Supreme Court set forth the
standards governing claims brought pursuant to the PCRA alleging ineffective assistance
of
counsel:
Under the PCRA, collateral relief is afforded to individuals who
prove that they are innocent of the crimes of which they were
convicted, and those receiving illegal sentences. 42 Pa.C.S. § 9542.
"A petitioner is eligible for PCRA relief only when he proves by a
preponderance of the evidence that his conviction or sentence resulted
from one or more of the circumstances delineated in 42 Pa.C.S. §
9543(a)(2)." Commonwealth v. Natividad, 938 A.2d 310, 320 (Pa.
2007). One of the grounds enumerated in 42 Pa.C.S § 9542(a)(2)
involves claims alleging ineffective assistance of counsel. Thus, the
PCRA provides relief to those individuals whose convictions or
sentences "resulted from 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." 42 Pa.C.S. § 9542(a)(2)(ii). This Court has
interpreted this to mean that in order to obtain relief on a claim
alleging ineffective assistance of counsel, a petitioner must prove
that: (1) the claim underlying the ineffectiveness claim has arguable
merit; (2) counsel's actions lacked any reasonable basis; and (3)
counsel's actions resulted in prejudice to petitioner. Commonwealth v.
Collins, 957 A.2d 237 (Pa. 2008); Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987). A chosen strategy will not be found to have lacked a
reasonable basis unless it is proven 'that an alternative not chosen
offered a potential for success substantially greater than the course
actually pursued." Commonwealth v. Williams, 899 A.2d 1060, 1064
(Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237
(Pa. 1998)). "Prejudice in the context of ineffective assistance of
counsel means demonstrating that there is a reasonable probability
that, but for counsel's error, the outcome of the proceeding would
have been different." Commonwealth v. Pierce, 786 A.2d 203, 213
(Pa. 2001); Strickland v. Washington, 466 U.S. 668, 694 (1984).
Finally, the law presumes that counsel was effective and the burden
of proving that this presumption is false rests with the petitioner.
Commonwealth v. Basemore, 744 A.2d 717, 728 n.10 (Pa. 2000).
Cox, 983 A.2d at 678.
3
the defendant to show that
"Prejudice," as articulated in Strickland and Pierce, requires
"trial counsel's omission had an actual adverse effect on the outcome
of the proceedings such
that [Defendant] is entitled to anew trial." Commonwealth v. Spotz, 84 A.3d 294, 317 (Pa. 2014);
Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa, 2004). The Pennsylvania Supreme Court
clarified the standard of proof required to establish prejudice in a PCRA proceeding and
distinguished it from the harmless error standard on direct appeal:
[A] defendant [raising a claim of ineffective assistance of counsel]
is
required to show actual prejudice; that is, that counsel's ineffectiveness
was of such magnitude that it 'could have reasonably had an adverse
effect on the outcome of the proceedings.' Pierce, 527 A.2d at 977.
This standard is different from the harmless error analysis that is
typically applied when determining whether the trial court erred in
taking or failing to take certain action. The harmless error standard, as
164
set forth by this Court in Commonwealth v. Story, 383 A.2d [155],
[(Pa. 1978)] (citations omitted), states that "[w]henever there is a
``reasonable possibility' that an error 'might have contributed to the
conviction,' the error is not harmless." This standard, which places the
burden on the Commonwealth to show that the error did not contribute
to the verdict beyond a reasonable doubt, is a lesser standard than the
Pierce prejudice standard...."
Spot; 84 A.3d at 315 (emphasis added). Thus, to establish the requisite prejudice in a PCRA
that, but for counsel's
proceeding, the defendant "must show there is a reasonable probability
Id. at 320-21.
error or omission, the result of the proceeding would have different."
is "whether the findings
The standard of review for an appeal from the denial of PCRA relief
Commonwealth Gwynn,
of the PCRA court are supported by the record and free of legal error."
v
943 A.2d 940, 944 (Pa. 2008). "The level of deference
accorded to the post -conviction court may
or matters of applying the
vary depending upon whether the decision involved matters of credibility
governing law to the facts as so determined." C'orinnonwealth v. Williams, 950 A.2d 294, 299 (Pa.
to deference, but its legal conclusions
2008). "The PCRA court's factual determinations are entitled
are subject to plenary review." Commonwealth. v. Gorby, 900 A.2d 346, 363 (Pa. 2006).
4
if: (1) the petition is
Finally, a judge may dismiss a PCRA petition without a hearing
facts alleged therein would not,
patently frivolous and without support in the record; or (2) the
907; Commonwealth v, Walls, 993
even if proven, entitle the defendant to relief. See Pa.R.Crim.P.
A.2d 289, 295 (Pa, Super. Ct. 2010) ("It is within the
PCRA court's discretion to decline to hold a
no support either in the record or
hearing if the petitioner's claim is patently frivolous and has
hearing on a PCRA petition, and if
other evidence."). "There is no absolute right to an evidentiary
issues of material fact exist, then a
the PCRA court can determine from the record that no genuine
hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. Ct, 2008).
are wholly without merit, and the
As discussed below, Defendant's ineffectiveness claims
Superior Court should affirm the PCRA court's dismissal
of his PCRA petitions.
Failing
2. Defendant's Claim That Trial Counsel Was Ineffective For
Merit
To Challenge The Sentence As Unconstitutional Is Without
to challenge the imposition
Defendant asserts that trial counsel was ineffective for failing
sentenced Defendant pursuant to 42
of a mandatory sentence of 10 to 20 years. The trial court
court of this
Pa.C.S. § 9714(a), which states, "Any person who is convicted in any
Commonwealth of a crime of violence shall, if at the time
of the commission of the current
offense the person had previously been Convicted
of a crime of violence, be sentenced to a
minimum sentence of at least ten years of total confinement."
U.S. Supreme Court held that
Regarding mandatory minimum sentencing statutes, the
are therefore elements and must be
any "fflacts that increase the mandatory -minimum sentence
doubt." Alleyne v. United States, 570 U.S.
submitted to the jury and found beyond a reasonable
A.3d 777 (Pa. Super. Ct. 2015), the Superior
99, 108 (2013). In Commonwealth v. Reid, 117
unconstitutional given the U.S. Supreme Court's
Court considered whether Section 9714(a) was
``Alleyne did not overturn prior precedent that
dictates of Alleyne. The Superior Court noted that
5
784. Indeed, even in
prior convictions are sentencing factors and not elements of offenses." Id. at
Alleyne, the U.S. Supreme Court recognized that prior convictions are a
"narrow exception" to
the general rule that the Sixth Amendment provides defendants with the
right to have a jury find
U.S. at
beyond a reasonable doubt any fact that increases the mandatory minimum. Alleyne, 570
111, n.1. Given that "narrow exception," the Superior Court held that Section
9714 was not
unconstitutional under Alleyne. Reid, 117 A.3d at 785.
Thus, Defendant's ineffectiveness claim regarding an unconstitutional mandatory
sentence is without merit because - at the time he committed the offense for which he was
sentenced - he had previously been convicted of voluntary manslaughter, which qualified as
crime of violence.
3. Defendant's Claim That Trial Counsel Was Ineffective For
Failins To Litigate A Rule 600(g) Motion Is Without Merit
to
Defendant claims that his trial counsel was ineffective for failing to litigate a motion
counsel did litigate
dismiss pursuant to Pa,R.Crim,P. 600(g). Contrary to Defendant's claim, trial
See N.T. 02/05/2013 at
a motion to dismiss pursuant to Pa.R,Crim.P. 600(g) on the day of trial,
trial counsel actually
2-9. The trial court denied the Rule 600(g) motion. Id. Because Defendant's
claim
litigated the Rule 600(g) motion, the PCRA court properly dismissed this ineffectiveness
as without merit.
4. Defendant's Claim That Trial Counsel Was Ineffective For Failing
To Interview Investigate and Call Alibi Witnesses is Without Merit
investigate
Defendant claims that his trial counsel was ineffective for failing to interview,
alibi witnesses at trial.
and call Anthony Scott, Marcus Scott, Jabriel Buie and Nathan Sharin as
In order to prove that trial counsel was ineffective for
failing to call an alibi witness to
(2) the witness
testify on his behalf, a defendant must demonstrate that: (1) the witness existed;
was available 0 testify; (3) counsel was aware of the existence of the witness, or should have
6
ready, willing and able to
known of her existence and availability; (4) the proposed witness was
testimony prejudiced the
testify on behalf of the defendant; and (5) the absence of the proposed
defendant. Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 1999). A defendant must satisfy
Lopez, 739 A.2d 485, 496
all of these elements by offers of objective proof. Commonwealth v.
on his claim. Id. Finally
(Pa. 1999). If the defendant fails to do so, he is not entitled to relief
or call a witness unless there
"trial counsel will not be found ineffective for failing to investigate
is some showing by the appellant that the witness's testimony would have been helpful to the
defense." Commonwealth v. Brown, 767 A.2d 576, 582 (Pa. Super. 2001) (citing Commonwealth
v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319 (1996)).
told the trial
Here, the PCRA court properly dismissed this claim because Defendant
to the jury other
court that he did not wish to have any witnesses or other evidence presented
his trial counsel.' N.T.
than Brenda Scott and that he was satisfied with the services of
this ineffectiveness claim.
02/06/2013 at 73-74. Therefore, the PCRA court properly dismissed
See Commonwealth v. Paddy, 800 A.2d 294, 315 (Pa. 2002) (trial counsel was not ineffective
call any witnesses and did not
where defendant was questioned by the court regarding right to
v. Hancharik, 565 A.2d 782, 784
indicate any additional witnesses to be called); Commonwealth
(Pa. Super. Ct. 1998) (same).
Additionally, given the overwhelming evidence of Defendant's
guilt - the strength of the
arrest as he was walking away from
identification testimony by Jackson as well as Defendant's
the driver's side of the stolen vehicle - Defendant cannot prove the requisite actual prejudice to
Trial Court Opinion, October 16, 2014 at 1-
succeed on this ineffectiveness claim. See generally,
claim is without merit.
4. For this additional reason, Defendant's ineffectiveness
testified at trial on February 6, 2011
Pursuant to Defendant's request, Brenda Scott
7
5. Defendant's Claim That Trial Counsel Was Ineffective For Failing
To Properly Advise Defendant Of His Right To Testify At Trial
him of his
Defendant claims that trial counsel was ineffective for failing to properly advise
the trial court-just
right to testify at trial. This claim is contradicted by the trial transcript wherein
before the trial ended - conducted a thorough colloquy of Defendant regarding his right to testify
on his own behalf. N.T. 02/06/2013 at 72-73. Defendant testified that
he was aware of
such, the PCRA
constitutional right to testify and that he did not want to testify at trial. Id. As
Willis, 68
court properly dismissed this ineffectiveness claim as without merit. Commonwealth
I),
A.3d 997 (Pa. Super. Ct. 2013) (PCRA court correctly rejected petitioner's
ineffectiveness claims
because defendant was
where the claims would contradict petitioner's statements to trial court
bound by those statements made in open court while under oath).
CONCLUSION
dismissal of
Based on the foregoing, the Superior court should affirm the PCRA court's
Defendant's PCRA petitions.
DAN EL DERS, JUDGE
Dated: May 25, 2018
8
Comm. v. Edward Scott
CP-51-CR-0006350-2011
1455 EDA 2018
PROOF OF SERVICE
I hereby certify that I am this day caused to be served the foregoing Order upon this person(s):
Attorney for Appellant: J. Matthew Wolfe
4256 Regent Square
Philadelphia, PA 19104
Type of Service: Regular mail
Appellant: Edward Scott
MT61 17
SO Coal Township
I Kelley Drive
Coal Township, PA 17866-1020
Type of Service: Regular mail
Appellee: Appeals Unit
Philadelphia District Attorney's Office
3 S. Penn Square
Philadelphia, PA 19107
Type of Service: CJC Mailbox
F
DATED: 7.0 I 2
Ra nond T. Dorizi., Esquire
Law Clerk to Hon. Daniel J. Anders