Com. v. Mann, S. ( 2016 )

J-S35036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SYHEAM MANN, :
:
Appellant : No. 262 EDA 2015
Appeal from the PCRA Order December 24, 2014
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0004106-2009
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 08, 2016
Syheam Mann (“Mann”), pro se, appeals from the Order dismissing his
first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See
42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court set forth the relevant underlying facts as follows:
At approximately 2:00 a.m.[,] on July 10, 2009, Ryan Glover
[“Glover”] returned to his home on 215 Wingate Road, Upper
Darby, in his van. A car owned by Kim Weeks [“Weeks”], a male
friend, was located in [] Glover’s parking spot. [] Glover
obtained the keys to [] Weeks’s car, moved it, and then
reentered his van to pull into his parking space. [Mann], whom
[] Glover had known for years, approached [] Glover, placed a
gun in his face, and demanded that he exit the van. [] Glover
pushed the gun, drove away from the area, and telephoned
police. [Mann] shot his gun at the fleeing vehicle. The
responding officer, Upper Darby Police Officer Dennis Keller,
viewed a bullet hole in the van’s driver’s side window. The bullet
entered the dashboard and lodged in the speedometer.
In the meantime, [Mann] and two other armed men, Edwin Clark
and Jeffrey Mason, broke into 215 Wingate Road, which was
occupied by [] Weeks. [] Weeks was sleeping in the living room
on the sofa when he was awakened by three males entering
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from the basement. After one man pointed a gun at his face, []
Weeks was ordered to the floor and complied. The cohorts
proceeded to ransack the second floor and, after [] Weeks
overheard them state that they were looking for money, he
managed to escape through a first-story window.
Police officers soon arrived at 215 Wingate Road to investigate
the prior shooting when they observed a broken door and heard
noises emanating from the house. At that point, the criminals
exited the residence through a skylight on the second floor. The
entire neighborhood was placed on lockdown and a helicopter
and the SWAT Team were deployed. [Mann] was apprehended
on the roof of a nearby house.
Based on this evidence, a jury convicted [Mann] of aggravated
assault, robbery, conspiracy to commit robbery, and burglary,
and the trial court adjudicated him guilty of person not to
possess firearms. [The trial court imposed] a term of
incarceration of twenty-two and one-half to forty-five years.
[Mann] filed a timely [M]otion for reconsideration of sentence[,
which was denied.]
Commonwealth v. Mann, 55 A.3d 125 (Pa. Super. 2012) (unpublished
memorandum at 2-3).
This Court affirmed the judgment of sentence and the Supreme Court
of Pennsylvania denied allowance of appeal on January 18, 2013. See id.,appeal denied, 62 A.3d 379 (Pa. 2013).
On October 1, 2013, Mann filed a timely pro se PCRA Petition. The
PCRA court appointed Mann counsel, who subsequently filed a
Turner/Finley1 “no-merit” letter and a Motion to Withdraw as Counsel. On
December 2, 2014, the PCRA court granted counsel’s Motion to Withdraw,
and issued a Pennsylvania Rule of Criminal Procedure 907 Notice. Mann filed
1
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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a pro se Reply to the Rule 907 Notice. Thereafter, the PCRA court dismissed
the Petition without a hearing.
Mann filed a timely pro se Notice of Appeal. Mann also filed a timely
pro se court-ordered Pennsylvania Rule of Appellate Procedure 1925(b)
Concise Statement, raising thirty-six claims of error. The PCRA court issued
an Opinion.
On appeal, Mann raises the following questions for our review:
I. Whether [the] PCRA court committed reversible error when
it: A) allowed counsel to be ineffective in failing to
investigate[] Amoy Archer; B) allowed counsel to be
ineffective in failing to elicit favorable testimony from
Trooper Daryl Elias; C) allowed counsel to be ineffective in
failing to ensure that [Mann’s] shirt [was] tested [for] lead
residue; D) allowed counsel to be ineffective in failing to
elicit favorable testimony from [] Glover; E) allowed
counsel to be ineffective in failing to object to false
testimony; F) allowed counsel to be ineffective in failing to
present favorable robbery evidence; G) allowed counsel to
be ineffective in failing to elicit favorable testimony from
[Weeks]; H) adopted counsel’s no[-]merit letter in whole;
I) allowed counsel to be ineffective in failing to object to
the court’s lack of jurisdiction and violation of Alleyne [v.
United States, 133 S. Ct. 2151 (2013)]; J) allowed
counsel to be ineffective in failing to object to [an] illegal,
excessive sentence; K) allowed counsel to be ineffective in
failing to object to uncharged evidence; L) allowed counsel
to be ineffective by conceding [Mann’s] fault; M) allowed
counsel to be ineffective in failing to object to the
prosecutor’s misstatement of facts; N) allowed counsel to
cumulatively prejudice [Mann] through his multiple
instances of ineffectiveness; [and] O) failed to grant [an]
evidentiary hearing[?]
II. [Whether] A) counsel was ineffective in failing to object to
the court’s misapplication of the law during sentencing; B)
counsel was ineffective in failing to object to the court’s
double counting [Mann’s] prior record score[?]
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Brief for Appellant at 4 (some capitalization omitted, issues renumbered for
ease of disposition).
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Initially, the PCRA court found subparts A) through E) of Mann’s first
claim to be waived for failing to properly raise the issues of trial counsel’s
ineffectiveness before the PCRA court. See PCRA Court Opinion, 6/30/15, at
11-14; see also Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.
2004) (stating that “a claim not raised in a PCRA petition cannot be raised
for the first time on appeal.”). Further, the PCRA court found that the fact
that Mann had raised the ineffective assistance of trial and direct appeal
counsel claims in his Reply to the Rule 907 Notice, without seeking leave to
amend his PCRA Petition, did not preserve the claims. See PCRA Court
Opinion, 6/30/15, at 12-13; see also Commonwealth v. Rykard, 55 A.3d
1177, 1192 (Pa. Super. 2012) (concluding that claims raised for the first
time in response to the court’s Rule 907 notice are not preserved for review
unless petitioner seeks, and the PCRA court grants, permission to file an
amended petition). While Mann properly raised claims of PCRA counsel
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ineffectiveness in the Reply to the Rule 907 Notice, see Commonwealth v.
Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009), he failed to raise such claims in his
Concise Statement; thus, those claims are waived on appeal. See
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (stating that
any issues not raised in a Rule 1925(b) concise statement will be deemed
waived). Based upon the foregoing, we conclude that the claims found at A)
through E) are waived on appeal.
In his related claims at F) and G), Mann contends that the PCRA court
failed to address his ineffectiveness claims against all prior counsel for failing
to present evidence related to the victim, Weeks, that would have
exonerated him of the robbery and conspiracy to commit robbery charges.
Brief for Appellant at 23, 24-25, 43; see also id. at 41-42 (arguing that
counsel failed to elicit favorable testimony from Weeks that led the jury to
hear misleading evidence regarding the number of guns used during the
robbery). Mann asserts that Weeks was not a victim in this case, but a co-
conspirator because he was in possession of the money stolen from another
victim, Glover, and that Weeks suffered no injuries, contrary to his claim
that he suffered numerous injuries. Id. at 23-24, 43. Mann claims that
there is a reasonable probability that the result of the proceedings would
have been different had this evidence been introduced at trial. Id. at 24.
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Here, Mann failed to raise any of these claims in his Rule 1925(b)
Concise Statement. Thus, his claims are waived on appeal. See Castillo,
888 A.2d at 780.
In his claim at H), Mann contends that the PCRA court erred in
allowing his PCRA counsel to withdraw because he did not fulfill the
Turner/Finley requirements. Brief for Appellant at 13, 16. Mann argues
that PCRA counsel failed to investigate and raise each issue that he sought
to have reviewed. Id. at 13-14, 15. Mann asserts that PCRA counsel failed
to interview him and failed to respond to any of his letters or phone calls.
Id. at 15. Mann requests that the matter be remanded and he be appointed
new counsel. Id. at 15-16.
Here, the PCRA court set forth the relevant standard of review, and
concluded that Mann’s claims are without merit. See PCRA Court Opinion,
6/30/15, at 43-53. We adopt the PCRA court’s thorough and sound
reasoning for the purpose of this appeal. See id.
In his claim at I), Mann contends that his trial, direct appeal, and
PCRA counsel were ineffective for failing to object or raise issue concerning
the bifurcated non-jury trial conducted by the trial court on the persons not
to possess firearms charge. Brief for Appellant at 18. Mann argues that he
did not execute a proper jury trial waiver. Id. Mann points out the written
jury waiver form included a docket number that was not applicable to his
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case. Id. Mann asserts that this was not harmless error, and requires a
new trial. Id. at 18-19.
The PCRA court addressed Mann’s claim and determined that he did
not properly preserve it. See PCRA Court Opinion, 6/30/15, at 36-38.
However, the PCRA court found that even if the claim was not waived,
Mann’s ineffectiveness claim as to trial counsel was without merit. See id.
at 38-41, 42-43.2 We adopt the sound reasoning of the PCRA court for the
purpose of this appeal. See id. at 36-41, 42-43.3
As part of his I) claim, Mann also contends that his firearm sentence
under 42 Pa.C.S.A. § 9712 was illegal based upon Alleyne. See Brief for
Appellant at 19-22. Mann argues that Alleyne applies retroactively, and
that his sentence must be vacated. Id. at 20-22. Mann asserts that his
trial, appellate, and PCRA counsel were ineffective for failing to raise this
claim. Brief for Appellant at 22-23.
2
We note that, on appeal, Mann does not raise an issue with trial counsel’s
strategy in seeking a non-jury trial on the firearms charge. See PCRA Court
Opinion, 6/30/15, at 41-42.
3
Mann waived his claims related to direct appeal and PCRA counsel’s
ineffectiveness, for failing to raise an issue with the bifurcated trial, by
failing to raise it in his Concise Statement. See Castillo, 888 A.2d at 780.
However, even if the claims were properly preserved, based upon the PCRA
court’s finding that trial counsel was not ineffective, we would also conclude
that direct appeal and PCRA counsel were not ineffective. See
Commonwealth v. Thomas, 44 A.3d 12, 17 (Pa. 2012) (stating that a
failure to satisfy any of the three prongs of the ineffectiveness test requires
rejection of an ineffective assistance of trial counsel claim, which requires
rejection of a layered claim of ineffective assistance of counsel).
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The PCRA court addressed Mann’s Alleyne claim and determined it to
be without merit. See PCRA Court Opinion, 6/30/15, at 30-33; see also
Commonwealth v. Riggle, 119 A.2d 1058, 1067 (Pa. Super. 2015)
(concluding that Alleyne does not apply retroactively even though appellant
filed a timely first PCRA petition, as his judgment of sentence was final at
the time Alleyne was decided).4 We adopt the sound reasoning of the PCRA
court for the purpose of this appeal. See PCRA Court Opinion, 6/30/15, at
30-33. Moreover, because Mann’s underlying claim does not have arguable
merit, his ineffectiveness claims fail. See Commonwealth v. Burno, 94
A.3d 956, 972 (Pa. 2014) (stating that a failure to satisfy any prong of the
ineffectiveness test, including whether the underlying claim has arguable
merit, requires rejection of the claim).
In his claim at J), Mann contends that all of his counsel were
ineffective for failing to raise claims related to the excessive sentence
imposed by the trial court. See Brief for Appellant at 25-28. Mann argues
that his sentence was outside the statutory guidelines and manifestly
unreasonable. Id. at 26. Mann also asserts that the trial court
misrepresented his juvenile record and improperly utilized enhancements
4
We acknowledge that an appellant may properly invoke Alleyne in a timely
first PCRA petition where the appellant’s judgment of sentence was not yet
final when Alleyne was decided. See Commonwealth v. Ruiz, 131 A.3d
54, 59 (Pa. Super. 2015). Additionally, Mann’s argument that the United
States Supreme Court’s recent decision in Montgomery v. Louisiana, 136
S. Ct. 718 (2016), which held that Miller v. Alabama, 132 S. Ct. 2455(2012), applies retroactively, should be similarly applied to Alleyne, is
flawed and without merit.
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when imposing the sentence. Id. at 26-27. Mann claims that he is entitled
to a new sentencing hearing. Id. at 28.
The PCRA court addressed Mann’s claims, and determined that he only
properly preserved his claim of ineffective assistance of direct appeal counsel
with regard to the excessive sentence assertion. See PCRA Court Opinion,
6/30/15, at 26. The PCRA court found Mann’s sole preserved claim to be
without merit. See id. at 27-28, 33-34; see also Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010) (stating that the
trial court may, in its discretion, impose sentences concurrently or
consecutively). We adopt the sound reasoning of the PCRA court for the
purpose of this appeal. See PCRA Court Opinion, 6/30/15, at 26-28, 33-34.
In his claim at K), Mann contends that all of his prior counsel were
ineffective for allowing the admission of two stipulations at trial. 5 Brief for
Appellant at 28, 31. Mann argues that he did not knowingly and voluntarily
agree to the stipulations and relied upon counsel’s advice in signing the
stipulations. Id. at 29, 30. Mann asserts that counsel should have filed a
pre-trial motion to exclude the evidence in the stipulations, not allow them
into evidence. Id. Mann points out that the stipulations allowed the
admission of multiple guns, most of which were not relevant to his case. Id.
5
Stipulation 1 set forth the proper chain of custody of the Commonwealth’s
trial exhibits. See PCRA Court Opinion, 6/30/15, at 74. Stipulation 2 set
forth various items of physical evidence recovered from the crime scene,
swabs from the seized firearms, buccal swabs, and a report from Forensic
Scientist Supervisor Michael L. Brincat. See id.
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at 30. Mann claims that because of the admission of multiple guns, he was
compelled to defend himself concerning his own actions, as well as the
actions of other people. Id.
The PCRA court addressed Mann’s claims related to trial counsel and
determined that they are without merit. See PCRA Court Opinion, 6/30/15,
at 72-78. We adopt the sound and thorough reasoning of the PCRA court for
the purpose of this appeal. See id.6
In his claim at L), Mann contends that his counsel was ineffective for
failing to protect Mann’s constitutional rights by allowing the prejudicial
admission of other crimes evidence. Brief for Appellant at 31. Mann argues
that trial counsel stipulated, without his consent, that two guns, including
one he allegedly possessed, were stolen from a residence in Uniontown,
Pennsylvania. Id. at 32. Mann asserts that this stipulation is false as other
guns were stolen from the residence. Id. Mann claims that counsel’s
actions forced him to answer for additional crimes for which he was not
charged. Id. at 32, 33. Mann further argues that there was no reasonable
basis for counsel’s actions. Id. at 32.
6
Mann waived his claims related to appellate and PCRA counsel’s
ineffectiveness based upon the admission of the stipulations by failing to
raise it in his Concise Statement. See Castillo, 888 A.2d at 780. However,
even if the claims were properly preserved, based upon the PCRA court’s
finding that trial counsel was not ineffective, we would also conclude that
direct appeal and PCRA counsel were not ineffective. See Thomas, 44 A.3d
at 17.
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The PCRA court addressed this claim and determined it to be without
merit. See PCRA Court Opinion, 6/30/15, at 64-72. We adopt the sound
reasoning of the PCRA court for the purpose of this appeal. See id.7
In his claim at M), Mann contends that his trial counsel was ineffective
for failing to object to the prosecutor’s various misstatements during closing
argument. Brief for Appellant at 46-49. Mann argues that counsel did not
have a reasonable basis for failing to object to the closing argument and
effectively abandoned him at a critical stage of the proceedings. Id. at 49.
Mann also asserts that his direct appeal and PCRA counsel were ineffective
for failing to raise this claim. Id. at 50.
The PCRA court addressed Mann’s claims and determined them to be
without merit. See PCRA Court Opinion, 6/30/15, at 53-59. We adopt the
sound reasoning of the PCRA court for the purpose of this appeal. See id.
Additionally, based upon the PCRA court’s finding that trial counsel was not
ineffective, we conclude that direct appeal counsel was not ineffective. See
7
Mann’s contention that appellate and PCRA counsel were ineffective for
failing to raise and argue this claim is waived for failing to raise it in his
Concise Statement. See Castillo, 888 A.2d at 780. However, even if the
claims were properly preserved, based upon the PCRA court’s finding that
trial counsel was not ineffective, we would also conclude that direct appeal
and PCRA counsel were not ineffective. See Thomas, 44 A.3d at 17.
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Thomas, 44 A.3d at 17.8
In his claim at N), Mann contends that the cumulative effect of trial
counsel’s ineffectiveness collectively warrants relief on his claims. See Brief
for Appellant at 50-53.
The PCRA court addressed this claim and determined that it is without
merit. See PCRA Court Opinion, 6/30/15, at 79-81. We adopt the sound
reasoning of the PCRA court for the purpose of this appeal. See id.In his claim at O), Mann contends that the PCRA court erroneously
failed to hold an evidentiary hearing on his PCRA Petition. Brief for Appellant
at 16. Mann argues that he was not afforded a meaningful review of his
claims, and that a hearing on the facts presented would have changed the
outcome of the proceedings. Id. at 16-17.
The PCRA court addressed Mann’s claim and determined that it is
without merit. See PCRA Court Opinion, 6/30/15, at 81-84. We adopt the
sound reasoning of the PCRA court for the purpose of this appeal. See id.
In his second claim, Mann contends that his trial counsel was
ineffective for failing to object to the trial court sentencing him to four
mandatory minimum sentences, for misapplying the prior record score and
offense gravity score, and sentencing him outside the guidelines. See Brief
8
Mann’s contention that PCRA counsel was ineffective for failing to raise and
argue this claim is waived for failing to raise it in his Concise Statement.
See Castillo, 888 A.2d at 780. However, even if the claim was properly
preserved, based upon the PCRA court’s finding that trial counsel was not
ineffective, we would also conclude that PCRA counsel was not ineffective.
See Thomas, 44 A.3d at 17.
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for Appellant at 53-55. Mann also argues that his trial counsel was
ineffective for failing to object to the double counting of his prior record
score when the trial court imposed the sentence. Id. at 55-57. Mann
asserts that his direct appeal and PCRA counsel were also ineffective for
failing to properly raise these claims. Id. at 55, 57.
Here, Mann did not raise these claims in his PCRA Petition. See
Santiago, 855 A.2d at 691. Further, Mann failed to raise any of these
claims in his Rule 1925(b) Concise Statement. See Castillo, 888 A.2d at
780. Thus, his claims are waived on appeal.9
Order affirmed.
P.J.E. Bender files a concurring statement in which Judge Musmanno
joins.
P.J.E. Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
9
As noted above, the PCRA court addressed Mann’s ineffectiveness claims as
to the discretionary aspects of his sentence and found them to be without
merit. See PCRA Court Opinion, 6/30/15, at 26-28, 33-34; see also Mann,
55 A.3d 125 (unpublished memorandum at 10-11) (wherein this Court
addressed Mann’s discretionary aspects of sentencing claim on direct appeal
and determined that it was without merit). To the extent Mann raises
additional legality of sentence claims, we determine that they are without
merit.
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Circulated 05/19/2016 02:44 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA NO. 4106-09
v.
SYHEAMMANN
John F. X. Reilly, Esquire - Deputy District Attorney for the Commonwealth
Syheam Mann - Pro Se
OPINION
Kelly, J. Date: June 30, 2015
A criminal complaint was filed on or about July 10, 2009, by Criminal Investigator
Donald Beese, Upper Darby Township Police Department, charging Syheam Mann (hereinafter
1
referred to as "Defendant" or "Mann"), inter alia, with Criminal Attempt to commit Homicide,
Robbery.i Aggravated Assault,3 Burglary,4 Person Not to Possess ... Firearms," and Criminal
Conspiracy to commit Robbery.6
On August 21, 2009, a preliminary hearing was held before the Magisterial District Court
and after the Commonwealth's presentation of evidence, the presiding Magisterial District Judge
held the Defendant for trial court purposes as to all prosecuted offenses.7 N.T. 8/21/09, pp. 122-
23.
1
18 Pa.C.S. § 901(2501).
2
18 Pa.C.S. § 3701.
3
18 Pa.C.S. § 2702.
4
18 Pa.C.S. § 3502.
5
18 Pa.C.S. § 6105.
6
18 Pa.C.S. § 903(3701).
7
On the close of its evidentiary presentation, the prosecution withdrew the following original charges: Unlawful
Restraint, 18 Pa.C.S. § 2902; Simple Assault, 18 Pa.C.S. § 2701; Recklessly Endearing Another Person, I 8 Pa.C.S.
§ 2705; Criminal Mischief, 18 Pa.C.S. § 3304; Harassment, 18 Pa.C.S. § 2709; and Receiving Stolen Property, 18
Pa.C.S. § 3925. N.T. 8/21/09, pp. 117-18.
Defendant Mann was formally arraigned before the trial court on September 17, 2009, at
which time the Office of the District Attorney of Delaware County lodged against him Criminal
Informations averring, inter alia, as follows: Information A - Criminal Attempt to commit
Homicide;" Information B - Robbery;" Information C - Burglary; 10 Information D - Person Not to
Possess ... Firearms; 11 Information F - Criminal Conspiracy to commit Robbery; 12 Information
G (Count I) - Aggravated Assault; 13 and Information G (Count II) - Aggravated Assault. 14 See
Criminal Informations. The Commonwealth as well filed a Notice of Proposed Joinder Under
Pennsylvania Rule of Criminal Procedure 582 of its intent to collectively try Defendant Mann,
along with his co-defendants, Jeffrey Mason (No. 5072-09) and Edwin Clark (No. 5071-09).15
See Pa.R.Crim.P. 582. See also Commonwealth v. Mason, No. 5072-09 - Delaware County, and
Commonwealth v. Clark, No. 5071-09 - Delaware County.
A jury trial commenced before this court on December 16, 2009,16 and concluded on
8
18 Pa.C.S. § 901(2501).
9
18 Pa.C.S. § 3701.
10
18 Pa.C.S. § 3502.
11
18 Pa.C.S. § 6105.
12
18 Pa.C.S. § 903(3701).
13
18 Pa.C.S. § 2702.
14 Id
15
Defendant Mann through his counsel filed of record on October 9, 2009, a Motion for Severance. See Motion for
Severance. A resulting hearing was held on October 13, 2009, and by agreement of counsel, inter alia, the court
reviewed the notes of testimony from the joint, co-defendant preliminary hearing. By order of October 21, 2009, the
court denied the severance motion. See Order dated October 21, 2009. Those concerns, if any, presented by this
severance application subsequently became moot as both co-defendants, Mason and Clark, pied guilty, and
Defendant Mann alone proceeded to trial.
Defendant Edwin Clark (No. 5071-09) entered an open guilty plea before this court on December 15, 2009, and
was sentenced on February 2, 2010. See Commonwealth v. Clark, No. 5071-09 - Delaware County. Defendant
Jeffrey Mason (No. 5072-09) as well, on December 15, 2009, entered before this court an open guilty plea and was
subsequently sentenced. See Commonwealth v. Mason, No. 5072-09 - Delaware County.
16
Immediately before trial, defense counsel orally renewed his Motion to Dismiss the Attempted Homicide
Information (A) grounded in alleged concerns resulting from victim, Ryan Glover's van being returned to him
2
December 18, 2009.17 N.T. 12/16/09. N.T. 12/17/09. N.T. 12/18/09. As to Information B -
Robbery, 18 Information C - Burglary, 19 Information F - Criminal Conspiracy to commit
Robbery.i" and Information G (Count I) - Aggravated Assault,21 the jury found Defendant Mann
guilty. N.T. 12/18/09, pp. 117-19. The jury as well found the Defendant not guilty regarding
Information A - Criminal Attempt to commit Homicide.22 This court sitting non-jury found
Defendant Mann guilty of Information D - Person Not to Possess ... Firearms.23 See Jury's and
Court's Verdicts, dated December 18, 2009.
following the police's investigative, evidentiary examination of the vehicle. The motion was denied by the court.
N.T. 12/16/10, pp. 4-8.
Previously, on November 13, 2009, Defendant Mann's attorney lodged ofrecord a substantially similar Motion to
Dismiss the Attempted Criminal Homicide Information for Spoilation of Evidence. See Motion to Dismiss. By
order dated November 24, 2009, upon such an oral application of defense counsel, the court directed, without
objection, that the motion be noted as withdrawn without prejudice to the Defendant and/or his lawyer thereafter
filing the same and/or a largely similar pleading as material circumstances may then warrant and/or as otherwise
believed appropriate. See Order dated November 24, 2009.
17
Prior to the commencement of the trial's evidentiary presentation, without objection, the Commonwealth, of
record, withdrew the balance of its past filed Informations (Information E - Firearms Not to be Carried Without a
License, 18 Pa.C.S. § 6106; Information G (Count II) - Aggravated Assault, 18 Pa.C.S. § 2702; Information H -
Criminal Trespass, 18 Pa.C.S. § 3503; Information I - Terroristic Threats, 18 Pa.C.S. § 2706; Information J -
Prohibited Offensive Weapons, 18 Pa.C.S. § 908; Information K - Possessing Instruments of Crime, 18 Pa.C.S.
§ 907; and Information L - Loitering and Prowling, 18 Pa.C.S. § 5506). N.T. 12/16/09 (Robing Room Conference),
pp. 3-7.
18
18 Pa.C.S. § 3701.
19
18 Pa.C.S. § 3502.
20
18 Pa.C.S. § 903(3701).
21
18 Pa.C.S. § 2702.
22
18 Pa.C.S. § 901(2501).
23
Recognizing the Defendant was charged with various violent, crimes and also by Information D - Person Not to
Possess .. . Firearms, 18 Pa.C.S. § 6105, and that to sustain its burden regarding this firearm offense the
Commonwealth was required to prove beyond a reasonable doubt the Defendant's past, disqualifying felony
conviction, defense counsel sought to sever this Information (D) from the balance of charges proceeding to trial by
jury. With the Commonwealth's agreement, Information D - Person Not to Possess ... Firearms, 18 Pa.C.S. § 6105,
was contemporaneously tried before this court non-jury, and for such purposes, the entire evidentiary presentation to
the jury as relevant and admissible was incorporated into the record, along with a stipulation to the Defendant's
prior, disqualifying, criminal conviction. Upon the advice and consent of his attorney, the Defendant on being
colloquied of record by counsel and the court concurred with this course of proceeding. N.T. 12/16/09, pp. 10-18;
N.T. 12/18/09, pp. 101-05. See also Stipulation filed in open court.
3
By letter dated February 25, 2010, the Commonwealth gave notice to the Defendant
through counsel of its intent to invoke the applicable Sentences for Offenses Committed with
Firearms mandatory sentencing provisions24 as to Informations B, C, F and G (Count I). See
Commonwealth's Notice.
On April 9, 2010, Defendant Mann following such a hearing25 was sentenced by this
court consistent with the respective offenses relevant Pennsylvania Sentencing Guidelines'
standard ranges26 as follows: Information B (Robbery)27 - a term of eighty-four (84) through one
hundred sixty-eight (168) months incarceration; Information C (Burglary)28 - a period of
imprisonment of sixty-six (66) to one hundred thirty-two (132) months; Information D (Person
Not to Possess ... Firearmsr'" - a term of sixty (60) through one hundred twenty (120) months
incarceration; Information F (Criminal Conspiracy to commit Robberyr'" - a period of
imprisonment of sixty-six (66) to one hundred thirty-two (132) months; and Information G
(Count I - Aggravated Assaultj" - a term of seventy-eight (78) through one hundred fifty-six
(156) months incarceration. The court further directed that the sentences per Informations C
(Burglary),32 D (Person Not to Possess ... Firearms),33 F (Criminal Conspiracy to commit
Robbery),34 and G (Count I - Aggravated Assault)35 were each to run consecutively with one
24
42 Pa.C.S. § 9712.
25
At trial, Kevin Mark Wray, Esquire, represented the Defendant. Prior to sentencing, Qwai Abdul Rahman,
Esquire, assumed stewardship of Defendant Mann's interests.
26
See Defendant's Sentencing Guidelines.
27
18 Pa.C.S. § 3701.
28
18 Pa.C.S. § 3502.
29
18 Pa.C.S. § 6105.
30
18 Pa.C.S. § 903(3701).
31
18 Pa.C.S. § 2702.
32
18 Pa.C.S. § 3502.
33
18 Pa.C.S. § 6105.
34
18 Pa.C.S. § 903(3701).
4
another while that of Information B (Robberyr" was to be served concurrently with these
consecutive incarceration terms. Thus, the aggregate sentenced imposed was twenty-two and a
half (22.5) through forty-five (45) years imprisonment. N.T. 4/9/10, pp. 32-33. See also
Certificate of Imposition of Judgment of Sentence.37
Defendant Mann, on April 19, 2010, timely lodged with the Office of Judicial Support of
Delaware County a counseled Motion for Reconsideration of Sentence. See Motion for
Reconsideration of Sentence. By order dated May 5, 2010, after a hearing having been held, the
court denied Defendant Mann's reconsideration motion as no material grounds and/or salient
evidence was averred and/or presented beyond that offered at the original sentencing proceeding
(April 9, 2010). See Order dated May 5, 2010. See also N.T. 5/5/10.
Defendant Mann, on June 9, 2010, filed a prose Notice of Appeal to the Superior Court
of Pennsylvania. See Notice of Appeal dated June 9, 2010. See also Superior Court No. 1581
EDA 2010. In response to its letter of June 11, 2010, regarding the prose appeal taken by the
Defendant, Patrick J. Connors, Esquire of the Office of the Delaware County Public Defender,
informed this court by correspondence dated June 22, 2010, that his office would hence be
representing Defendant Mann. The court via order dated June 28, 2010, directed the Defendant's
attorney to lodge of record a Concise Statement of Matters Complained of on Appeal. See Order
35
18 Pa.C.S. § 2702.
36
18 Pa.C.S. § 3701.
37
With the agreement of counsel, the court concluded that none of the crimes for which Defendant Mann was
convicted merged as related to sentencing. N.T. 4/9/10, pp. 4, 33-34.
The court as well determined at sentencing, without objection, that the Defendant was not eligible for recidivism
risk reduction incentive consideration, 61 Pa.C.S. §§ 4501 et seq., due to his criminal history and/or the nature of
certain convictions at bar. N.T. 4/9/10, p. 32.
Absent opposition, the court also found that such appropriate prior notice had been given as well as the prosecution
had sufficiently proven the applicability of the Sentences for Offenses Committed with Firearms' mandated
provision, 42 Pa.C.S. § 9712. N.T. 4/9/10, pp. 32-33.
5
dated June 28, 2010. Responding to this court order (June 28, 2010), Defendant Mann's counsel
timely filed on July 16, 2010, a Statement of Matters Complained of on Appeal raising three (3)
assignments of error. See Statement of Matters Complained on Appeal, dated July 16, 2010.
Per order of July 21, 2010, the Superior Court directed Defendant Mann to show cause as
to why his appeal should not have been quashed as untimely having been filed on June 9, 2010,
two (2) days after the appeal notice was due (June 7, 2010). See Pa.R.A.P. 903(a). See also
Superior Court No. 1581 EDA 2010, Order dated July 21, 2010. On July 28, 2010, Defendant
Mann responded to the appellate court's order (July 21, 2010). See Superior Court No. 1581
EDA 2010.
On September 14, 2010, the Superior Court directed that " ... the issue raised by this
Court's Order [July 21, 2010 - appeal's timeliness] will be referred to the panel assigned to
decide the merits of this appeal and the issue will be considered by that panel." See Superior
Court No. 1581 EDA 2010, Order dated September 14, 2010.
This court on December 13, 2010, entered of-record pursuant to Pa.R.A.P. 1925(a) its
opinion resulting from the Defendant's appeal notice described immediately above and relatedly
directed the Judicial Support Office of Delaware County to transmit to the Superior Court the
salient case record. See Opinion dated December 13, 2010. See also AOPC Case Docket and
Superior Court No. 1581 EDA 2010.
On February 18, 2011, the Defendant lodged a pro se Application for Appointment of
Counsel with this court. See Application for Appointment of Counsel. On this same date
(February 18, 2011), the Defendant forwarded to this court a letter detailing his dissatisfaction
with his appellate lawyer and appended to this letter was correspondence from Attorney Connors
to Defendant Mann in which counsel discussed the frivolity of the pending appeal. See
6
Defendant's Letter. On March 2, 2011, this court directed a hearing be held regarding the
Defendant's pro se application. Such a hearing took place on March 10, 2011. The court
dismissed the Defendant's prose application via an order of this same date (March 10, 2011).
See Order dated March 10, 2011.
On March 16, 2011, the Defendant's lawyer filed with the Superior Court an Anders brief
and application to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400
(1967). See Superior Court No. 1581 EDA2010.
The Office of the District Attorney of Delaware County on April 15, 2011, lodged with
the Superior Court a Motion to Quash and Brief for Appellee in support of its motion. See
Motion to Quash and Supporting Brief.
On April 18, 2011, the Superior Court ordered Defendant Mann to lodge a response to his
counsel's withdrawal petition and Anders brief within ninety (90) days subsequent. See Superior
Court No. 1581 EDA 2010, Order dated April 18, 2011. On May 12, 2011, the appellate court
directed that the Commonwealth's Motion to Quash was to be deferred to the panel assigned to
deciding the merits of the Defendant's appeal. See Superior Court, No. 1581 EDA 2010, Order
dated May 12, 2011.
On May 26, 2011, Defendant Mann filed with the appellate court an "Application for
Extension of Time to File Pro Se [sic] Response to Counsel's Petition to Withdraw and Anders
[sic] Brief." See Superior Court No. 1581 EDA 2010. On June 23, 2011, the Superior Court
granted the Defendant's extension request. See Superior Court, No. 1581 EDA 2010, Order
dated June 23, 2011.
On March 6, 2012, the Superior Court found the Defendant's pro se Notice of Appeal
was timely filed under the "prisoner mailbox rule." See Superior Court No. 1581 EDA 2010,
7
Opinion dated March 6, 2012, pp. 2-4. By way of this same opinion (March 6, 2012), the
appellate court denied not only the Commonwealth's Motion to Quash, but also appellate
counsel's petition to withdraw and further instructed Defendant Mann's attorney to file an
advocate's brief or a second Anders brief. See Superior Court No. 1581 EDA 2010, Opinion
dated March 6, 2012.
On April 20, 2012, the Defendant's appellate counsel lodged a second Anders brief and
related withdrawal application. See Superior Court No. 1581 EDA 2010.
The Superior Court on July 9, 2012, found direct appeal counsel's second Anders brief to
be proper, as well as reviewed and rejected Defendant Mann's prose claims advanced per his
response to his lawyer's Anders filing, including the following: A claim grounded in the victim's
van being returned to him on the police investigative examination of the same being concluded;
A challenge to his sentence; and An allegation of prosecutorial misconduct related to the
Assistant District Attorney's closing. See Superior Court No. 158 EDA 2010, Opinion dated
July 9, 2012, pp. 5, 7-13. The Superior Court thus affirmed the Defendant's judgment of
sentence. See Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, p. 13.
On August 8, 2012, Defendant Mann lodged a pro se Petition for Allowance of Appeal
with the Pennsylvania Supreme Court. See Supreme Court No. 686 MAL 2012. The Supreme
Court of Pennsylvania via its order of January 18, 2013, denied the Defendant's allowance of
appeal petition. See Supreme Court No. 686 MAL 2012, Order dated January 18, 2013. The
Defendant did not file with the United States Supreme Court a Petition for Writ of Certiorari.
Defendant Mann on or about October 1, 2013, timely lodged a prose Petition for Post
Conviction Collateral Relief. See Defendant's Petition. This petition being his first PCRA
pleading the Defendant for such purposes was entitled to counsel's assistance. See generally
8
Commonwealth v. Luckett, 700 A.2d 1014, 1016 (Pa.Super. 1997). See also Commonwealth v.
Perez, 799 A.2d 848, 851-52 (Pa.Super. 2002) citing Commonwealth v. Guthrie, 749 A.2d 502,
504 (Pa.Super. 2000); Commonwealth v. Ferguson, 722 A.2d 177, 179 (Pa.Super. 1998);
Commonwealth v. Hampton, 718 A.2d 1250, 1252-53 (Pa.Super. 1998); and Commonwealth v.
Ramos, 14 A.3d 894, 895-96 (Pa.Super. 2011). Per such an order dated October 8, 2013, and
consistent with his request for counsel's stewardship, Stephen D. Molineux, Esquire was for this
collateral action appointed to represent the Defendant. See Defendant's Petition, p. 22. See also
Order dated October 8, 2013.
Subsequent to his requesting and being granted extensions of time within which to lodge
of-record an amended PCRA pleading, appointed counsel in compliance with the dictates of
Commonwealth v. Finley, 481 U.S. 551, 558-59, 107 S.Ct. 1990, 1995 (1987), Commonwealth v.
Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-29 (1988) and Commonwealth v. Friend, 896 A.2d
607, 614-15 (Pa.Super. 2006), filed on or about April 28, 2014, an "Application to Withdraw
Appearance" and supporting "No Merit Letter." See "Application to Withdraw" and supporting
"No Merit Letter." See also Orders dated February 7, 2014, and March 27, 2014. By his "No
Merit Letter," the Defendant's lawyer based on his comprehensive, advocate's review of the
salient record and related investigation found Defendant Mann's various explicit and/or implicit
collateral claims raised by his PCRA pleading lacked merit and/or otherwise were unsupported
by the material record. See "No Merit Letter," pp. 1, 16.
The court via order of December 2, 2014, granted Attorney Molineux's withdrawal
application and entered a related Notice of Intent to Dismiss Without a Hearing. See Order and
Dismissal Notice dated December 2, 2014.
9
On December 15, 2014, Defendant Mann filed his Petitioner's Reply to PCRA Counsel's
Application to Withdraw Appearance, No Merit Letter, and Notice of Intent to Dismiss Pursuant
to Pa.R.Crim.P. 907. See Petitioner's Reply.
The court by order dated December 24, 2014, dismissed the Defendant's collateral
pleading. See Order dated December 24, 2014.
On January 20, 2015, Defendant Mann lodged a timely prose Notice of Appeal from the
court's dismissal of his PCRA petition. See Notice of Appeal dated January 20, 2015.
Per such an order of this same date (January 20, 2015), the court instructed Defendant
Mann to file a Concise Statement of Matters Complained of on Appeal. See Order dated January
20, 2015. Responding to this order (January 20, 2015), the Defendant timely lodged on February
6, 2015, a pro se statement of appellate complaints. See Statement of Matters Complained.
Although his PCRA petition advanced fourteen (14) collateral claims and his reply to the court's
dismissal notice set forth five (5) allegations of appointed counsel's supposed professional
incompetence, Defendant Mann by his complaints on appeal statement yet lists thirty-six (36)
error assignments. See Defendant's Petition; Petitioner's Reply; and Statement of Matters
Complained.
Despite the voluminous nature of the Defendant's statement of matters complained, a
majority of the complaints on appeal per that immediately below can be summarily addressed. A
notable number of Defendant Mann's appellate complaints for purposes of the pending appeal
have been waived. Another appreciable group of his error assignments related to this court
allegedly "infringing" on the Defendant's constitutional rights are nothing more than bald,
boilerplate assertions unsupported by any meaningfully developed arguments, even assuming
appellate review of the same has not been waived. Those many attacks on direct appeal
10
counsel's stewardship were previous decided adverse to Defendant Mann with the Superior
Court on its independent case record review accepting his appellate attorney's Anders brief,
permitting counsel's withdraw, and affirming the sentencing judgment at bar. While the
Defendant's various challenges to his sentence do require some discussion in light of the recent
Pennsylvania Supreme Court decision, Commonwealth v. Hopkins, 98 MAP 2013 (Pa. 2015), his
continued complaints about the discretionary aspects of the sentence at bar, whether such attacks
are directed toward this court or his attorneys, are just meritless recognizing that Defendant
Mann's sentence was past examined by the Superior Court and found to be within a trial court's
discretionary sentencing authority. As for the more modest balance of the Defendant's
complaints on appeal, these error assignments will be discussed subsequent.
I. Waived Assignments o(Error.
It is long-settled law that for purposes of subsequent appellate review issues must first be
raised before the trial court. Pa.R.A.P. 302(a)("Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal."). Appellate review of collateral claims is thus
generally a function of the PCRA petition's averments, filings amending the original collateral
pleading, assuming such leave of court has been sought and permitted, and those attacks on
PCRA counsel's stewardship set forth by a defendant's prose response to the court's dismissal
notice. See Commonwealth v. Spatz, 610 Pa. 17, 71, Fn. 17, 18 A.3d 244, 275, Fn. 17 (2011) and
Commonwealth v. Jones, 572 Pa. 343, 358-59, 815 A.2d 598, 607-08 (2002) citing
Commonwealth v. Bond, 572 Pa. 588, 599-600, 819 A.2d 33, 39 (2002); Commonwealth v.
Basemore, 560 Pa. 258, 272, 744 A.2d 717, 725 (2000); and Commonwealth v. Albrecht, 554 Pa.
31, 56, 720 A.2d 693, 706 (1998). Because a notable majority of Defendant Mann's error
assignments were not advanced previous before this court, but rather averred for the first time on
11
appeal, these belated collateral claims for purposes of the pending appellate review should be
deemed waived. Id. See also Pa.R.A.P. 302(a).
The Defendant via his Petition for Post Conviction Collateral Relief raised fourteen (14)
original claims. See Defendant's Petition, pp. 5-7. His reply to PCRA counsel's Application to
Withdraw Appearance, No-Merit Letter, and the court's Notice oflntent to Dismiss set forth five
(5) alleged instances of collateral counsel's supposed ineffectiveness. See Petitioner's Reply, p.
2. A comparative review of these collateral pleadings lodged with this court and the Defendant's
Statements of Matters Complained readily reveals numerous error assignments not past advanced
before this court, including but not limited to the following: Trial court's supposed lack of
jurisdiction; Numerous alleged instances of direct appeal counsel's purported ineffectiveness;
Various attacks on trial counsel's purported incompetence; and Numerous claims this court in
varied ways infringed the Defendant's constitutional rights. See Statements of Matters
Complained, Nos. 7, 8, 11, 12, 13, 16, 18, 19, 21, 22, 23, 26, 27, 28-36.38
This court acknowledges that some of those error assignments described above were
noted by Defendant Mann via his reply to the dismissal notice in addition to its five (5)
allegations of collateral counsel's supposed incompetence. See Petitioner's Reply. This court
relatedly recognizes that at bar the Defendant neither sought nor was he allowed leave to amend
his original PCRA pleading. Defendant Mann's misuse of the opportunity afforded him to reply
to the dismissal notice and/or his PCRA attorney's "No Merit Letter" by including numerous and
varied, new collateral claims does not save those error assignments grounded in challenges first
38
Although for those reasons detailed above all these error assignments should be seen for purposes of the pending
appellate review as waived, those complaints on appeal salient to direct appeal counsel's purported incompetence,
certain discretionary sentencing concerns, and the supposed infringement of the Defendant's constitutional rights are
further discussed infra as it relates to their meritless nature and/or being past litigated adverse to Defendant Mann.
See Sections III, IV, V. Because jurisdictional and sentencing legality claims are non-waivable, such are also
addressed infra. See Sections V, VI.
12
raised on appeal from being seen as waived. See Statements of Matters Complained, Nos. 8, 10,
11, 12, 18, 19,23,26,28,29,30,31,32,34,35,and36. SeealsoPetitioner'sReply,pp.17-19,
33-37, 40-43, 46-48, 60, 64-66, and 54-56. The Superior Court in such regard has on appeal
found waiver of such belatedly advanced appellate complaints.
While Appellant was explicitly instructed that he could respond,
and by law is authorized to file a response to the court's pre-
dismissal notice, both [Commonwealth v.] Williams, 732 A.2d at
1191, and Pa.R.Crim.P. 905, suggest that in order to properly aver
a new non-PCRA counsel ineffectiveness claim, the petitioner
must seek leave to amend his petition. See also [Commonwealth
v.] Paddy [, 609 Pa. 272, 15 A.3d 431 (2011)] [ ... ];
Commonwealth v. Porter, [613 Pa. 510, 523-24], 35 A.3d 4, 12
(2012) ("amendment is permitted only by direction or leave of the
PCRA court."); Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d
806, 825 n. 19 (2004); [Commonwealth v.] Derrickson, [923 A.2d
466,] 469 [(Pa.Super. 2007)]. Having not sought permission to
amend his petition to raise these new claims, the PCRA court was
not required to address the issues and it did not. Hence,
Appellant's final two claims do not entitle him to relief.
[Commonwealth v.] Williams, [557 Pa. 207, 252-53,] 732 A.2d
[1167,] 1191 [(1999)].
Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa.Super. 2012).
By his reply, Defendant Mann improperly averred entirely new and unrelated claims
from those asserted in his PCRA petition beyond collateral counsel's stewardship. See
Petitioner's Reply. See also Commonwealth v. Porter supra 613 Pa. at 523-24, 35 A.3d at 12.
As detailed throughout the reply's sixty-nine (69) single spaced pages, these untimely collateral
claims focused on a wide array of topics, stemming from trial and collateral counsel's supposed
ineffectiveness, this court's abuse of discretion and prosecutorial misconduct, yet well less than a
third of such claims were past raised in the Defendant's collateral petition. See Petitioner's
Reply, pp. 17-66. See also Defendant's Petition.
13
The parameters of the pending appellate review have been defined by the averments of
Defendant Mann's PCRA petition, his dismissal notice reply's claims of collateral counsel's
incompetence, and the absence of him having sought and been granted leave to amend his
original PCRA pleading.39 Resultantly, those collateral challenges set forth for the first time on
appeal by way of the Statement of Matters Complained and not past alleged per the Defendant's
PCRA petition and/or those averred instances of collateral counsel's purported ineffectiveness
advanced via the dismissal notice reply should for purposes of the pending appellate review be
deemed waived. See Pa.R.A.P. 302(a) and Commonwealth v. Spotz supra 610 Pa. at 71, Fn. 17,
18 A.3d at 275, Fn. 17; Commonwealth v. Jones supra 572 Pa. at 359, 815 A.2d at 607-08 citing
Commonwealth v. Bond supra 572 Pa. at 599-600, 819 A.2d at 39; Commonwealth v. Basemore
supra 560 Pa. at 272, 744 A.2d at 725; and Commonwealth v. Albrecht supra 554 Pa. at 56, 720
A.2d at 706. See also Statement of Matters Complained, Nos. 7, 8, 11, 12, 13, 16, 18, 19, 21, 22,
23, 26, 27, 28-36.
II. The PCRA Court Erred When it Failed to Interpret Defendant's Reply to Finley and 907 as
an AmendedPetition.
Defendant Mann contends per this error assignment that the court was mistaken in failing
to "interpret" his Petitioner's Reply to its dismissal notice and his counsel's "No Merit Letter" as
an amended PCRA petition and/or seemingly an application that he be granted such leave. See
Statement of Matters Complained, No. 4.
It is only for the first time on appeal through his statement of appellate complaints that
Defendant Mann advances his "amended petition" argument. See Statement of Matters
39
Defendant Mann has seemingly acknowledged his failure to have requested and been allowed by this court leave
to amend his original collateral filing is for him problematic as evidenced per the appellate complaint that the court
erred in not "interpreting" his dismissal notice reply to be such an amendment application. See Statement of Matters
Complained, No. 4. The meritless nature of this error assignment is further discussed infra. See Section II.
14
Complained, No. 4. See also Defendant's Petition and Petitioner's Reply. Defendant Mann
having failed to raise before this court his current "amended petition" claim and opting to do so
only for the first time at bar on appeal, this error assignment for purposes of appellate review
should be deemed waived. See Pa.R.A.P. 302(a). See also Commonwealth v. Duffy, 832 A.2d
1132, 1137 (Pa.Super. 2003); Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa.Super. 2015);
and Commonwealth v. Parker, 104 A.3d 17, 28 (Pa.Super. 2014).
Even assuming this error assignment is not found to have been waived, the Defendant's
claim that this court was mistaken in not "interpreting" his reply to its dismissal notice was rather
an application to amend the original petition's collateral claims is on the record at bar without
support and meritless.
The Supreme Court of Pennsylvania in Commonwealth v. Porter observed, "[ o ]ur
procedural Rules contemplate that amendments to pending PCRA petitions are to be 'freely
allowed to achieve substantial justice.' Pa.R.Crim.P. 905(A)." Commonwealth v. Porter supra
613 Pa. at 523, 35 A.3d at 12. The Supreme Court further found in Porter that the
" ... appellant is mistaken in arguing that Rule 905 amendments are self-authorizing, i.e. that a
petitioner may simply 'amend' a pending petition with a supplemental pleading. Rather the Rule
explicitly states that amendment is permitted only by direction or leave of the PCRA court." Id.
at 523-24, 35 A.3d at 12. See also Commonwealth v. Rykard supra 55 A.3d at 1192 citing
Commonwealth v. Williams supra 557 Pa. at 252-53, 732 A.2d at 1191; Commonwealth v. Paddy
supra 609 Pa. at 339-40, 15 A.3d at 471; Commonwealth v. D'Amato supra 579 Pa. at 522, Fn.
19, 856 A.2d at 825, Fn. 19; Commonwealth v. Derrickson supra 923 A.2d at 469; and
Commonwealth v. Baumhammers, 92 A.3d 708, 730-31 (Pa. 2014). The Pennsylvania Supreme
15
Court also relatedly noted that the defendant in Porter wrongly addressed new and unrelated
claims via his "amended" petition of his initial PCRA filing. Id. at 523-24, 35 A.3d at 12.
While this court properly informed Defendant Mann of his opportunity to respond to its
dismissal notice pursuant to Pa.R.Crim.P. 907(1), ("Defendant Mann may respond to this Notice
oflntent to Dismiss Without a Hearing within twenty (20) days of this notice's date."), such an
advisement was certainly not this court granting the Defendant permission to file either an
amended or an entirely new collateral petition. See Dismissal Notice and Order dated December
2, 2014, p. 2. See also Commonwealth v. Rykard supra 55 A.3d at 1192 citing Commonwealth v.
Williams supra 557 Pa. at 252-53, 732 A.2d at 1191 and Pa.R.Crim.P. 907(1).
A response to a PCRA dismissal notice has repeatedly been found by the appellate courts
not to be an application to amend a past lodged collateral pleading and/or an amended Post
Conviction Relief Act filing. Commonwealth v. Rykard supra 55 A.3d at 1187 ("A response to a
notice of dismissal and petitions have traditionally, and in practice, been viewed as distinct. See
Pa.R.Crim.P. 907(1) (utilizing both phrases separately); Commonwealth v. Williams, 557 Pa.
207, 732 A.2d 1167 (1999) ([A] Batson claim [ advanced] for first time in a response to pre-
dismissal notice did not require PCRA court to address the issue and weighed in favor of
disallowing an amended petition); Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 825
n. 19 (2004); Paddy, supra at 440 & 471 (Pa. 2011) ([T]reating response to a notice of dismissal
as objections and not a new amended petition or serial petition); Commonwealth v. Derrickson,
923 A.2d 466, 469 (Pa.Super. 2007).").
The court in Rykard further held "The rule [Pa.R.Crim.P. 907] does not treat a response
to its notice of dismissal as ... an amended petition .... " Commonwealth v. Rykard supra 55
A.3d at 1187. Rather, such has been held as chance for a defendant to advance a new issue
16
solely concemmg PCRA counsel ineffectiveness or an objection to the dismissal.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) and Commonwealth v. Ford, 44 A.3d
1190, 1198 (Pa.Super. 2012) ("[W]hen counsel files a Turner/Finley no-merit letter to the PCRA
court, a petitioner must allege any claims of ineffectiveness of PCRA counsel in a response to
the court's notice of intent to dismiss.") citing Commonwealth v. Pitts, 603 Pa. 1, 9, Fn. 4, 981
A.2d 875, 880, Fn. 4. Resulting from Defendant Mann's original PCRA petition, his appointed
lawyer on April 28, 2014, lodged the "No Merit Letter" contemporaneously forwarding the
Defendant a copy. See Application to Withdraw. On December 2, 2014, this court entered a
dismissal notice and order granting collateral counsel's application to withdraw. See Dismissal
Notice and Order dated December 2, 2014. Over the intervening months, Defendant Mann filed
no pleadings, including an amendment request and/or some supplemental lodging advancing
claims beyond those his petition set forth. It was only following the entry of the dismissal notice
that the Defendant submitted his reply (December 14, 2014), the now claimed application to
application to amend and/or amended petition. See Petitioner's Reply.
Even more revealing of the Defendant's true intent behind this reply is his entitling the
document, a "Petitioner's Reply to PCRA Counsel's Application to Withdraw Appearance, No
Merit Letter, and Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907." See Petitioner's
Reply. (Emphasis added). After his reply's introductory paragraphs, Defendant Mann consistent
with this pleading's titling posited seven (7) "Questions of Law" for this court's consideration
centered on allegations of appointed counsel's supposed incompetence and the notice of intent to
dismiss, absent a hearing. See Petitioner's Reply, p. 2. Again, in accord with the reply's title,
none of these questions of law assertions can be construed as a request by the Defendant that he
be granted leave to amend his initial collateral filing. The reply Defendant Mann now for the
17
first time on appeal argues to be an amendment application and/or amended PCRA pleading
cannot by its plain terms and post-dismissal notice lodging be reasonably or seen otherwise as a
request that this court allow his Post Conviction Relief Act petition's amendment.
Because the Defendant only raises for the first time through his statement of matters
complained of on appeal that his previously filed reply to this court's dismissal notice such an
argument should be deemed waived. See Pa.R.A.P. 302(a). See also Commonwealth v. Duffy
supra 832 A.2d at 1137; Commonwealth v. Tejada supra 107 A.3d at 797; and Commonwealth v.
Parker supra 104 A.3d at 28. Alternatively, the Defendant's reply should be seen as he
explicitly titled such, a "Petitioner's Reply to PCRA Counsel's Application to Withdraw
Appearance, No Merit Letter, and Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907,"
and not some belatedly claimed, unaverred, self-authorizing attempt to amend his original,
collateral petition. Commonwealth v. Paddy supra 609 Pa. at 339-40, 15 A.3d at 471 and
Commonwealth v. Porter supra 613 Pa. at 523, 35 A.3d at 12. The opportunity afforded
defendants under Pa.R.Crim.P. 907(1) to respond to a dismissal notice and an application to
amend a past filed collateral pleading are two (2), separate and distinct lodgings. Commonwealth
v. Porter supra 613 Pa. at 523, 35 A.3d at 12 and Commonwealth v. Rykard supra 55 A.3d at
1187. See also Pa.R.Crim.P. 905(A).
Defendant Mann's sixty-nine (69) page, single spaced, reply to the notice of dismissal
while replete with a wealth of other legal citations, does not reference Pa.R.Crim.P.
905(A)("Amendment ... of Petition for Post Conviction Collateral Relief.") Moreover, this court
throughout its tenure as a criminal judge has received numerous pro se collateral amendment
requests so readily entitled in various manners which even lacking legal citations were clearly
averred amendment applications. Some of these pro se defendants have challenged this court
18
denying the sought after amendment, but none until Defendant Mann have been so constrained to
argue that the court mistakenly did not "interpret" their filings as requests for leave to amend.
The court did not err in "failing to interpret" the Defendant's reply to its dismissal notice for
anything other than that which he titled it, a "Petitioner's Reply to PCRA Counsel's Application
to Withdraw Appearance, No Merit Letter, and Notice of Intent to Dismiss Pursuant to
Pa.R.Crim.P. 907." See Petitioner's Reply. This assignment of error is meritless. See Statement
of Matters Complained, No. 4.
IIL Claims of Constitutional Rights Being Infringed.
Although neither raised by his collateral petition nor his reply to the PCRA lawyer's "No
Merit Letter" and the notice of dismissal, the Defendant by appellate complaints twenty-eight
(28) through thirty-six (36) alleges various instances of his " . . . constitutional rights being
infringed ... " by this court. See Statements of Matters Complained, Nos. 28-36.4° Foremost,
these error assignments now being raised for the first time on appeal should be deemed waived
salient to the pending appellate review. See Pa.R.A.P. 302(a) and Commonwealth v. Spatz supra
610 Pa. at 71, Fn. 17, 18 A.3d at 275, Fn. 17; Commonwealth v. Jones supra 572 Pa. at 359, 815
A.2d at 607-08 citing Commonwealth v. Bond supra 572 Pa. at 599-600, 819 A.2d at 39;
Commonwealth v. Basemore supra 560 Pa. at 272, 744 A.2d at 725; and Commonwealth v.
Albrecht supra 554 Pa. at 56, 720 A.2d at 706. Assuming arguendo, Defendant Mann's failure
to previously advance at bar any of these complaints on appeal does not occasion their appellate
review waiver, they are meritless.
40
Recognizing that the legality of a sentence is a non-waivable claim and should be addressed by the court,
assuming it then enjoys requisite jurisdiction, Defendant Mann's various sentencing challenges are discussed infra
as the same, inter alia, relates to Alleyne v. United States,_ U.S._, 133 S.Ct. 2151 (2013) and Commonwealth
v. Hopkins supra 98 MAP 2013. See Section V. See also Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super.
2007) quoting Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005)(en bane), appeal denied, 591 Pa. 688,
917 A.2d 844 (2007).
19
Beyond the repeated generality that his " ... constitutional rights were infringed ... ," the
Defendant does not detail with meaningful specificity the federal and/or Commonwealth
constitutional protection supposedly contravened and/or the nature of these purported
constitutional violations. Bald, undeveloped averments fail to satisfy a defendant's burden of
establishing entitlement to PCRA relief when such allegations are boilerplate, constitutional
claims. Commonwealth v. Hall, 582 Pa. 526, 535, 872 A.2d 1177, 1182 (2005) and
Commonwealth v. Washington, 583 Pa. 566, 573-74, 880 A.2d 536, 540-41 (2005). "A PCRA
petitioner must exhibit a concerted effort to develop his ... claim and may not rely on boilerplate
allegations .... " Commonwealth v. Natividad, 595 Pa. 188, 209, 938 A.2d 310, 322-23 (2007)
citing Commonwealth v. Spatz, 587 Pa. 1, 99, 896 A.2d 1191, 1250 (2006). Further, " ... an
undeveloped argument, which fails to meaningfully discuss and apply the standard governing the
review of ... claims, simply does not satisfy Appellant's burden of establishing that he is entitled
to any relief." Commonwealth v. Bracey, 568 Pa. 264, 273, Fn. 4, 795 A.2d 935, 940, Fn. 4
(2001).
Because these complaints on appeal encompassing error assignment numbers twenty-
eight (28) through thirty-six (36) are nothing more than bald, boilerplate claims that his
" . . . constitutional rights were infringed . . . " by this court together with his not offering any
articulated arguments in support of the same, these appellate complaints are not viable grounds
warranting Post Conviction Relief Act remedy, assuming the Defendant's failure to have
advanced these constitutional challenges previous has not occasioned for purposes of the pending
appeal their waiver. See Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182 and
Commonwealth v. Washington supra 583 Pa. at 573-74, 880 A.2d at 540-41; Commonwealth v.
Natividad supra 595 Pa. at 209, 938 A.2d at 322-23 citing Commonwealth v. Spatz supra 587 Pa.
20at 99, 896 A.2d at 125; and Commonwealth v. Bracey supra 568 Pa. at 273, Fn. 4, 795 A.2d at
940, Fn. 4. See also Pa.R.A.P. 302(a); Commonwealth v. Spatz supra 610 Pa. at 71, Fn. 17, 18
A.3d at 275, Fn. 17; Commonwealth v. Jones supra 572 Pa. at 359, 815 A.2d at 607-08 citing
Commonwealth v. Bond supra 572 Pa. at 599-600, 819 A.2d at 39; Commonwealth v. Basemore
supra 560 Pa. at 272, 744 A.2d at 725; and Commonwealth v. Albrecht supra 554 Pa. at 56, 720
A.2d at 706.
IV. Claims of Direct Appeal Counsel's Ineffectiveness.
Defendant Mann per his PCRA petition alleged the following claims of purported
professional incompetence all targeting direct appeal counsel: Failure to raise spoliation claim;
Failure to raise a generalized prosecutorial misconduct claim;" Failure to investigate; and
Failure to argue an excessive sentencing claim. See Defendant's Petition, pp. 6-7. Through his
statement of appellate complaints the Defendant advanced material to his direct appeal attorney
the following ineffectiveness challenges: Failure to raise the trial court's lack of jurisdiction;
Failure to challenge the legal sufficiency of the trial evidence regarding the aggravated assault
conviction; Failure to raise a claim of excessive sentencing; Failure to raise various supposed
instances of alleged prosecutorial misconduct; Failure to argue erroneous admission of evidence;
Failure to raise a spoliation argument; and Failure to argue properly a legal sufficiency challenge
to the robbery conviction. See Statements of Matters Complained, Nos. 7, 8, 9, 10, 11, 12, 13,
14, 15, 16.
41
The Defendant via his petition simply averred direct appeal counsel " ... failed to raise Petitioner's claims of
prosecutorial conduct." See Defendant's Petition, p. 6. It is only by surmising that Defendant Mann may be
referencing the more specifically alleged instances of supposed prosecutorial improprieties he to some extent better
detailed prior in this filing that this collateral claim can be understood. See Defendant's Petition, p. 6 - Paragraphs
G, H, I, J.
21
A comparative review of the original PCRA petition and the statement of matters
complained thus reveals as recounted above that Defendant Mann has properly preserved for
appellate review only those collateral attacks on his direct appeal lawyer's stewardship regarding
claimed prosecutorial misconduct, supposed spoliation of evidence, and an alleged excessive
sentencing claim with the balance of error assignments challenging the professional competency
of direct appeal counsel otherwise being waived. See Commonwealth v. Spotz supra 610 Pa. at
71, Fn. 17, 18 A.3d at 275, Fn. 17; Commonwealth v. Jones supra 572 Pa. at 359, 815 A.2d at
607-08 citing Commonwealth v. Bond supra 572 Pa. at 599-600, 819 A.2d at 39; Commonwealth
v. Basemore supra 560 Pa. at 272, 744 A.2d at 725; and Commonwealth v. Albrecht supra 554
Pa. at 56, 720 A.2d at 706. See also Statement of Matters Complained, Nos. 7, 8, 12, 16. These
remaining error assignments yet ripe for appellate review on the instant record are clearly
meritless and simply not grounds warranting Post Conviction Relief Act remedy.
In deciding the direct appeal adverse to Defendant Mann, inter alia, the Superior Court
" ... examined counsel's [Anders] brief and found it compliant with Santiago." See Superior
Court No. 1581 EDA 2010, Opinion dated July 9, 2012, p. 5. More dispositive to the
Defendant's attack on his direct appeal lawyer's stewardship, the Superior Court concluded that
"[ a]fter independent review of the record, we concur with counsel's assessment that this appeal
is wholly frivolous .... " See Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012,
p. 7.
As part of its direct appeal review, the Superior Court examined and found the trial
evidence as a matter of law sufficient to sustain Defendant Mann's robbery conviction. See
Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 5-7. Resulting from the
Defendant's pro se response to his direct appeal attorney's Anders filing, the Superior Court
22
again reviewed in the context of Defendant Mann's arguments the legal sufficiency of his
robbery conviction and once more found the evidence as a matter of law adequate. See Superior
Court No. 1581 EDA 2010, Opinion dated July 9, 2012, p. 9. The Superior Court once again per
the Defendant's response to his direct appeal counsel's Anders brief reviewed and rejected a
spoliation of evidence claim grounded in the Commonwealth returning the victim his van on the
conclusion of the police's investigative examination of the motor vehicle. See Superior Court
No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 9-10. Again, the Superior Court pursuant
to the Defendant's response to the Anders filing of his direct appeal lawyer reviewed the
discretionary aspects of the sentence imposed and concluded the controlling appellate standard in
combination with the material case record just did not support its vacating the sentence at bar.
See Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 10-11. The Superior
Court also via the Defendant's response to his direct appeal counsel's Anders brief examined the
claim of prosecutorial misconduct attacking the Assistant District Attorney's summation and
concluded the challenged" ... remarks ... were in fair response to the defense's characterization
of the evidence and reasonable inferences that could be derived from the evidence presented,"
and this claim of prosecutorial impropriety was without basis. See Superior Court No. 1581
EDA 2010, Opinion dated July 9, 2012, pp. 12-13.
To be eligible for Post Conviction Relief Act remedy, a defendant must plead and prove
the ineffective assistance of counsel AND that any such allegations of error have not been
previously litigated. 42 Pa.C.S. § 9543(a)(2)(ii)(3) (Emphasis added). An issue has been
previously litigated for purposes of the Act " . . . if the highest appellate court in which the
petitioner could have had review as a matter of right as ruled on the merits of the issue .... "
42 Pa.C.S. § 9544(a)(2). As detailed above, the Superior Court past ruled adversely to
23
Defendant Mann regarding those same issues he now attacks his direct appeal lawyer for not
pursuing and/or properly litigating, and the Supreme Court of Pennsylvania allowed the
intermediate appellate court's decision to stand. See Superior Court No. 1581 EDA 2010,
Opinion dated July 9, 2012. See also Supreme Court No. 686 MAL 2012.
In light of the foregoing, Defendant Mann's various attacks targeting the professional
competence of his direct appeal counsel find on the instant record no support. Being past
litigated, the alleged omissions and/or inadequacies of direct appellate counsel are not a basis for
collateral relief. 42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2). Certainly, the challenged actions
and/or inactions of the Defendant's direct appeal lawyer per the instant record can neither be
shown to enjoy the requisite merit necessary to Post Conviction Relief Act remedy nor that
Defendant Mann suffered the prejudice such a remedy requires. Commonwealth v. Pierce supra
515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct.
at 2064. See also Commonwealth v. Robinson, 583 Pa. 358, 369, 877 A.2d 433, 439 (2005). A
finding of defense counsel's professional incompetence as well cannot be grounded on a claim
he did not pursue a baseless course of action. Commonwealth v. Sneed, 616 Pa. 1, 33, 45 A.3d
1096, 1115 (2012) and Commonwealth v. Hutchinson, 521 Pa. 482, 488, 556 A.2d 370, 372
(1989). Moreover, this court greatly struggles to envision those circumstances, if any, where a
defendant's direct appeal lawyer can be found ineffective, when the Superior Court previously
accepted counsel's Anders brief and relatedly concluded the "appeal is wholly frivolous." See
Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 5, 7.
V. Sentencing Claims.
Related to sentencing considerations, Defendant Mann via his PCRA petition advanced
the sole challenge that direct appeal counsel was purportedly ineffective for not pursuing an
24
excessive sentencing claim before the Superior Court. See Defendant's Petition, p. 7. From this
singular sentencing averment of his PCRA pleading, Defendant Mann through his appellate
complaint statement has set forth five (5) error assignments attacking for various reasons his
sentence, including but not limited to this court lacking jurisdiction, some unspecified illegality,
and/or the sentence's purported excessiveness. See Statements of Matters Complained, Nos. 7,
9, 27, 29, 30.
Although neither proffered per his original petition nor the statement of appellate
complaints, Defendant Mann in his dismissal notice reply did reference the United States
Supreme Court decision of Alleyne v. United States supra; however, his citation to Alleyne was
offered seemingly in support of an argument challenging the non-jury trial bifurcation of the
Person Not to Possess ... Firearms42 charge from the balance of prosecuted offenses tried before
the jury with the confusing conclusion that the recovered firearms must hence be excluded from
Commonwealth's trial usage and/or the trial record, and without the handguns, his various,
violent felonious convictions cannot stand.43 See Petitioner's Reply, pp. 18-19. As a seemingly
lesser alternative, the Defendant contends by his reply that the court sitting as the ultimate fact
finder regarding the Person Not to Possess ... Firearms44 Information (D) and resultantly finding
beyond a reasonable doubt he had been proven guilty of this charge (Information D) runs afoul
of the constitutional teachings per Alleyne and his thus illegal sentences must be vacated. See
Petitioner's Reply, p. 19.
42
18 Pa.C.S. § 6105.
43
The legal propriety and reasoned basis for defense counsel seeking the non-jury bifurcation of the Person Not to
Possess ... Firearms, Id., charge from the balance of prosecuted offenses are further discussed infra. See Section
VII.
44 Id.
25
Because all the Defendant's sentencing error assignments grounded in claims of
excessiveness with only one (1) exception have not been properly preserved for purposes of the
pending appeal, while recognizing challenges to a sentence's legality are non-waivable and are to
be addressed by the court, assuming it then has necessary jurisdiction, Defendant Mann's
appellate complaints regarding sentencing are addressed below differentiating first between those
that should be deemed waived and a discussion thereafter as to his sentence's lawfulness.
Flowing from the well-settled principle that "[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal," the only excessive sentencing claim the
Defendant has properly preserved for appellate review is his direct appeal lawyer's supposed
ineffectiveness for not pursuing such a challenge previous before the Superior Court. Pa.R.A.P.
302(a). See also Defendant's Petition, p. 7. Excepting its legality, Defendant Mann belatedly
raising other various challenges to his sentence via the dismissal notice reply simply does not
preserve those issues for purposes of the pending appellate review as the Defendant never sought
and was not permitted by this court leave to so amend his original PCRA petition.
Commonwealth v. Rykard supra 55 A.3d at 1192. For these reasons, the Defendant's error
assignments salient to supposed sentencing excessiveness should be seen as waived beyond the
otherwise meritless attack targeting direct appeal counsel not litigating such a claim previous
before the Superior Court. Commonwealth v. Spatz supra 610 Pa. at 71, Fn. 17, 18 A.3d at 275,
Fn. 17; Commonwealth v. Jones supra 572 Pa. at 359, 815 A.2d at 607-08 citing Commonwealth
v. Bond supra 572 Pa. at 599-600, 819 A.2d at 39; Commonwealth v. Basemore supra 560 Pa. at
272, 744 A.2d at 725; and Commonwealth v. Albrecht supra 554 Pa. at 56, 720 A.2d at 706. See
also 42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2), and Superior Court No. 1581 EDA 2010, Opinion
dated July 9, 2012.
26
As for the sole error assignment the Defendant has properly preserved for appellate
review asserting direct appeal counsel was ineffective by not arguing an excessive sentencing
claim, a review of the record at bar reveals such to have been both past litigated and found
without merit. See Defendant's Petition, p. 7 and Section IV.
The Superior Court in reviewing Defendant Mann's response to his direct appeal
lawyer's Anders filing expressly examined the relevant case record and opined that below:
Appellant's sixth allegation relates to the discretionary aspects of
the sentenced imposed herein. . . . His complaint pertains to the
excessiveness of his punishment, . . . . . ..
We are compelled to find that Appellant's excessiveness position
disintegrates under the glare of our appellate role since this Court
is not imbued with the power to overturn a sentencing court's
evaluation of whether to impose consecutive as opposed to
concurrent sentences. Commonwealth v. Gonzalez-Dejusus, 994
A.2d 595, 598 (Pa.Super. 2010) (citation omitted) ("Long standing
precedent of this Court recognizes that 42 Pa.C.S.A. section 9721
affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.").
See Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 10-11.
Post Conviction Relief Act remedy eligibility, inter alia, requires a defendant must both
plead and prove as well as that any such collateral challenge has not been past litigated.
42 Pa.C.S. §§ 9543(a)(2)(ii)(3) and 9544(a)(2). As the Superior Court previous on direct appeal
decided this same issue underlying the attack on appellate counsel's stewardship adversely to the
Defendant, it is not now a viable basis for collateral relief. Id.
Similar to Defendant Mann's other collateral attacks on his direct appeal attorney's
professional competence, this assertion that appellate counsel was ineffective for not advancing
an excessive sentencing claim also on the instant record can neither be demonstrated to enjoy the
necessary merit requisite to collateral relief nor that the Defendant occasioned the prejudice such
27
remedy requires. Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing
Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064. See also Commonwealth v.
Robinson supra 583 Pa. at 369, 877 A.2d at 439. Moreover, a defendant's lawyer cannot be
found professionally incompetent for failing to raise or pursue a baseless challenge.
Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v. Hutchinson
supra 521 Pa. at 488, 556 A.2d at 372.
Despite Defendant Mann's PCRA petition advancing the lone sentencing related claim
that direct appeal counsel was professionally incompetent for not arguing an excessive
sentencing challenge before the Superior Court and his neither having sought nor been granted
leave to amend this original collateral pleading, his various contentions of sentencing illegality
set forth via his dismissal notice reply and certain of the appellate complaint statement's error
assignments " ... may be raised as a matter of right, [are] non-waivable, and may be entertained
so long as the reviewing court has jurisdiction." Commonwealth v. Munday, 78 A.3d 661, 664
(Pa.Super. 2013) quoting Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.Super. 2007)(en
bane). See also Commonwealth v. Fowler supra 930 A.2d at 592 and Commonwealth v. Vega,
754 A.2d 714, 719 (Pa.Super. 2000)("Legality of sentence is always subject to review within the
PCRA, .... "). The Defendant at bar timely lodged his collateral petition and the courts have the
jurisdiction necessary to adjudicate this collateral filing's merits. 42 Pa.C.S. § 9545(a)(b)(1)(3).
Defendant Mann by his statement of matters complained avers the following assertions of
sentencing illegality: Trial court's lack of jurisdiction resulting in multiple, illegal sentences."
Trial counsel's alleged ineffectiveness for failing to object to the trial court's lack of jurisdiction
resulting in multiple illegal sentences; and The conducting of a non-jury trial, absent jurisdiction,
45
This court clearly enjoying the jurisdiction necessary to lawfully conducting the case's trial and legally imposing
the sentence resulting from his convictions is discussed further infra. See Section VI.
28
resulting in multiple, illegal sentences. See Statement of Matters Complained, Nos. 7, 17, 29.
Defendant Mann additionally via his dismissal notice reply raised a sentencing claim based on
Alleyne v. United States supra, although this Alleyne driven challenge attacked the non-jury trial
bifurcation of the Person Not to Possess ... Firearms46 charge and did not take issue with this
court imposing the Sentences for Offenses Committed with Firearms' mandatory minimum
provisions, 42 Pa.C.S. § 9712. See Petitioner's Reply, pp. 18-19.
As used by the Pennsylvania courts, an "illegal sentence" is a term of art describing three
(3) narrow case categories: Sentences beyond the applicable statutory maximums; Sentences
contravening principles of merger-double jeopardy; and/or Sentencing claims implicating the
United States Supreme Court's constitutional teachings per Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348 (2000). Commonwealth v. Munday supra 78 A.3d at 664 citing
Commonwealth v. Robinson supra 931 A.2d at 21. Relevant to current considerations, it is only
the statutory maximum legality and the lawfulness of the Defendant's sentence in light of
Apprendi, Alleyne and most recently Commonwealth v. Hopkins supra 98 MAP 2013 that
warrant commentary by this court.47
At bar, Defendant Mann was convicted of the following first degree felonies: Robbery48
(Information B); Burglary49 (Information C); Criminal Conspiracy to commit Robbery''"
(Information F); and Aggravated Assault51 (Information G - Count I). N.T. 12/18/09, pp.
46
18 Pa.C.S. § 6105.
47
This court, the Assistant District Attorney and the Defendant's sentencing counsel all concurred that for purposes
of sentencing none of Defendant Mann's convictions merged. N.T. 4/9/10, pp. 4, 33-34. The Defendant offers
nothing to the contrary and the case record supports no such other conclusion.
48
18 Pa.C.S. § 3701.
49
18 Pa.C.S. § 3502.
50
18 Pa.C.S. § 903(3701).
51
18 Pa.C.S. § 2702.
29
117-19. The respective statutory maximum sentences for these felonies of the first degree are
twenty (20) years per each conviction. See 18 Pa.C.S. § 1103(1). The Defendant additionally
was convicted of Person Not to Possess ... Firearms,52 a second degree felony. The allowed
statutory maximum sentence for a second degree felony is ten (10) years. See 18 Pa.C.S.
§ 1103(2). Trial courts unquestionably enjoy the lawful authority to direct that sentences from
non-merging convictions be served either concurrently or consecutively. Commonwealth v.
Gonzalez-Dejusus supra 994 A.2d at 598. See also 42 Pa.C.S. § 9721. Hence, the aggregate
statutory maximum sentence resulting from Defendant Mann's convictions is ninety (90) years.
This court's maximum sentence of forty-five (45) years is unquestionably lawful. See Certificate
of Imposition of Judgment of Sentence.
In reviewing Defendant Mann's challenge to the legality of his sentence, this court
readily recognizes that the United States Supreme Court found that below per its Alleyne v.
United States supra decision:
Any fact that, by law, increases the penalty for a crime is an
'element' that must be submitted to the jury and found beyond a
reasonable doubt. Mandatory minimum sentences increase the
penalty for a crime. It follows, then, that any fact that increases the
mandatory minimum is an 'element' that must be submitted to the
Jury.
Alleyne v. United States supra_ U.S. at_, 133 S.Ct. at 2155.
This court is as well very much aware that the Superior Court in the matter of
Commonwealth v. Valentine found the Sentences for Offenses Committed with Firearms'
mandatory minimum sentencing provision53 to run afoul of Alleyne and hence, in its entirety
unconstitutional. Commonwealth v. Valentine, 101 A.3d 801, 811-12 (Pa.Super. 2013). This
52
18 Pa.C.S. § 6105.
53
42 Pa.C.S. § 9712.
30
court also relatedly recognizes that the Superior Court has additionally held an appreciable
number of other Pennsylvania mandatory sentencing provisions likewise unconstitutional.
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)(en bane); Commonwealth v. Munday
supra; Commonwealth v. Thompson, 93 A.3d 478 (Pa.Super. 2014); Commonwealth v. Watley,
81 A.3d 108 (Pa.Super. 20l3)(en bane); and Commonwealth v. Wolf, 106 A.3d 800 (Pa.Super.
2014). Finally, this court is additionally cognizant that in its most recent decision of
Commonwealth v. Hopkins the Pennsylvania Supreme Court found the Drug Free School Zones'
mandated sentencing provision54 to be constitutionally invalid per Alleyne 's teachings.
Commonwealth v. Hopkins supra 98 MAP 2013.
Given the Supreme Court of Pennsylvania's rationale in combination with the similarities
between the Commonwealth's mandatory minimum statutory schemes and language, it is this
court's belief that there is now no question that Pennsylvania's fact driven mandatory minimum
sentences do not pass constitutional muster. Despite the unconstitutionality of the Sentences for
Offenses Committed with Firearms'55 mandated provision being clear, this court is yet of the
view that any such sentencing legality challenge by Defendant Mann is without merit.
Defendant Mann proceeded to trial in December 2009 and was sentenced on April 9,
2010. See Jury's and Court's Verdicts dated December 18, 2009, and Certificate of Imposition
of Judgment of Sentence. The Superior Court affirmed the Defendant's sentencing judgment via
its opinion dated July 9, 2012, and the Supreme Court of Pennsylvania denied his allowance of
appeal petition by order of January 18, 2013. See Superior Court No. 1581 EDA 2010, Opinion
dated July 9, 2010 and Supreme Court No. 686 MAL 2012, Order dated January 18, 2013. The
United States Supreme Court decided Alleyne on June 17, 2013, some approximate six (6)
54
18 Pa.C.S. § 6317.
55
42 Pa.C.S. § 9712.
31
months subsequent to Defendant Mann's sentencing judgment becoming final. Alleyne v. United
States supra. See also 42 Pa.C.S. § 9545(b)(3). Accordingly, the Defendant must demonstrate
to enjoy their constitutional teachings that Alleyne and Hopkins apply retroactively to timely
commenced collateral actions. Any such argument by Defendant Mann should be seen as
failing.
New rules of constitutional law and/or protections promulgated by the United States
Supreme Court are not retroactively applied to cases on collateral review unless the Supreme
Court of the United States or the Pennsylvania Supreme Court hold such to have retroactive
attachment. Commonwealth v. Abdul-Salaam, 571 Pa. 219, 227, 812 A.2d 497, 502 (Pa. 2002).
See also 42 Pa.C.S. § 9545(b)(l)(iii). A defendant claiming entitlement to the retroactive
application of a newly announced constitutional rule and/or protection must have raised and
preserved the issue before the lower courts:
[W]here an appellate decision overrules prior law and announces a
new principle, unless the decision specifically declares the ruling
to be prospective only, the new rule is to be applied retroactively to
cases where the issue in question is properly preserved at all
stages of adjudication up to and including any direct appeal.
Commonwealth v. Newman supra 99 A.3d at 90 quoting Commonwealth v. Cabeza, 503 Pa. 228,
233, 469 A.2d 146, 148 (1983)(Emphasis added - Emphasis in original omitted).
The Supreme Court of the United States did not address in Alleyne whether its holding
was applicable to cases on timely collateral review. In its subsequent decisions, the United
States Supreme Court has not found the constitutional teachings of Alleyne to enjoy retroactive
attachment. Likewise, the Supreme Court of Pennsylvania has not held that Alleyne retroactively
applies. The Pennsylvania Supreme Court on announcing its Commonwealth v. Hopkins
decision notedly began its opinion with "[i]n this direct appeal .... " Commonwealth v. Hopkins
supra 98 MAP 2013.
32
The Superior Court has past observed that "[ e ]ven assuming Alleyne did announce a new
constitutional right, neither our Supreme Court, nor the United States Supreme Court has held
that Alleyne is to be applied retroactively to cases in which the judgment of sentence has become
final." Commonwealth v. Miller, 101 A.3d 988, 995 (Pa.Super. 2014). Although not the binding
law of this Commonwealth, federal circuit court of appeals have found Alleyne does not have
retroactive attachment. See United States v. Reyes, 755 F.3d 210 (3rd Cir. 2014); United States v.
Winkleman, et al., 746 F.3d 133 (3rd Cir. 2014); In re Payne, 733 F.3d 1027 (10th Cir. 2013); and
In re Kemper, 735 F.3d 211 (5th Cir. 2013).
Defendant Mann not having raised such a challenge previous before this court or the
appellate courts during his direct appeal litigation cannot now successfully maintain as part of
the instant collateral action that under Alleyne v. United States supra and Commonwealth v.
Hopkins supra his mandatory minimum sentence pursuant to 42 Pa.C.S. § 9712 (Sentences for
Offenses Committed with Firearms) is unlawful. See Trial Court Opinion dated December 13,
2010 and Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012. See also
Commonwealth v. Newman supra 99 A.3d at 90 and Commonwealth v. Miller supra 102 A.3d at
995.
Beyond doubting that Defendant Mann can successfully demonstrate the retroactive
attachment necessary to his now enjoying that set forth by Alleyne and Hopkins, a review of the
case record salient to sentencing as well leads this court to question whether the Defendant can
establish the prejudice necessary to collateral remedy as it relates to this aspect of his sentence.
In imposing its sentence, this court had the benefit of fully reviewing beforehand a
presentence investigation as well as the various diagnostic reports directed to be done as aids in
sentencing. N.T. 4/9/10, p. 24. See also Commonwealth v. Devers, 59 Pa. 88, 101-02, 546 A.2d
3312, 18 (1988)("Where pre-sentence reports exist, we shall continue to presume that the
sentencing judge was aware of relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory factors. A pre-sentence report
constitutes the record and speaks for itself."); Commonwealth v. Moury, 992 A.2d 162, 171
(Pa.Super. 2010) quoting Commonwealth v. Devers supra 59 Pa. at 101-02, 546 A.2d at 18 and
citing Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super. 2005)(" ... [I]t is presumed that
the sentencing court 'was aware of the relevant information regarding defendant's character and
weighed those considerations along with mitigating statutory factors.' " quoting Commonwealth
v. Boyer, 856 A.2d 149, 154 (Pa.Super. 2004)); and Pa.R.Crim.P. 702. The court as well had the
opportunity of reviewing prior to sentencing imposition letters offered in support of the
Defendant and a written statement from Defendant Mann. N.T. 4/9/10, pp. 14-15. This court
comprehensively detailed, of-record, its various reasons and concerns for the sentence it
resultantly imposed. N.T. 4/9/10, pp. 24-34. See also Certificate of Imposition of Judgment of
Sentence. A hearing was held on the Defendant's counseled, sentencing reconsideration motion.
N.T. 4/9/10. See also Motion for Reconsideration of Sentence. The admittedly significant
sentence this court imposed was subject to appellate scrutiny during the Defendant's direct
appeal and found to be within the bounds of a trial court's discretionary sentencing authority.
See Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 10-11. The Supreme
Court of Pennsylvania declined to review the Superior Court affirming Defendant Mann's
sentencing judgment. See Supreme Court No. 686 MAL 2012, Order dated January 18, 2013.
Assuming arguendo the Defendant is found to enjoy the retroactive attachment of Alleyne
and Hopkins, this court's acknowledgment that the Commonwealth had sufficiently proven the
applicability of 42 Pa.C.S. § 9712 (Sentences for Offenses Committed with Firearms) on the
34
salient instant record does not demonstrate for collateral remedy the requisite prejudice.
Regardless of whether the constitutional teachings of Alleyne and Hopkins are found for the
Defendant's benefit to retroactively attach, the fundamental fairness of the sentencing process
was not seriously undermined by this court recognizing as a matter of record that the prosecution
had established the Sentences for Offense Committed with Firearms' mandatory minimum
provisions56 particularly with, Defendant Mann's sentence already having withstood direct
appellate review.
VI. Court's Jurisdiction.
Although not averred via his PCRA petition, Defendant Mann throughout his appellate
complaints statement makes repeated claims that this court for less than clear reasons lacked
jurisdiction and the sentences it imposed resulting from his convictions at bar are thus illegal.
See Statement of Matters Complained, Nos. 7, 27, 29. See also Defendant's Petition, pp. 4-7.
Most curiously, the Defendant yet repeatedly maintains directly to the contrary as his original
collateral pleading and dismissal notice reply both begin with the unequivocal statements that
"[t]he Court of Common Pleas of Delaware County, Pennsylvania, shall possess original
jurisdiction .... " See Defendant's Petition, p. 1 and Petitioner's Reply, p. 1. Any challenge to
this court having the jurisdiction necessary to lawfully preside over the case's trial and thereafter
impose sentences stemming from his resulting convictions is frivolous.
An objection to lack of subject matter jurisdiction can never be waived and may be raised
at any stage in the proceedings by the parties or by a court on its own motion. Commonwealth v.
Jones, 593 Pa. 295, 301, 929 A.2d 205, 208 (2007) citing Commonwealth v. Little, 455 Pa. 163,
167, 314 A.2d 270, 272-73 (1974). Subject matter jurisdiction exists when the court is
56
42 Pa.C.S. § 9712.
35
competent to hear the case and a defendant has been provided with a formal and specific notice
of the crimes charged. A court's competency hinges on a demonstration that a criminal act
occurred within the territorial jurisdiction of the court. Id. The Courts of Common Pleas have in
all cases arising under the Pennsylvania Crimes Code, 18 Pa.C.S. §§ 101 et seq., statewide
jurisdiction. See Commonwealth v. Bethea, 574 Pa. 100, 113, 828 A.2d 1066, 1074 (2003).
Moreover, "[a] person may be convicted under the law of this Commonwealth for an offense
committed by his own conduct or the conduct of another for which he is legally accountable if ...
the conduct which is an element of the offense . . . occurs within this Commonwealth . . . ."
18 Pa.C.S. § 102(a)(l).
The totality of the varied criminality Defendant Mann and his co-conspirators perpetrated
was unquestionably all centered about the two hundred (200) block of Wingate Road, Upper
Darby Township, Delaware County, Pennsylvania. N.T. 12/16/09 and 12/17/09. See also
Criminal Complaint and Probable Cause Affidavit. The factual circumstances on which the
Defendant's convictions and resultant sentences rest having occurred wholly within the 32"d
judicial district, any objection to the jurisdiction of this court is patently meritless.
Commonwealth v Jones supra 593 Pa. at 301, 929 A.2d at 208 citing Commonwealth v. Little
supra 455 Pa. at 167, 314 A.2d at 272-73.
VII. Bifurcated Non-jury Trial.
Defendant Mann via his statement of complaints on appeal raises the following issues
related to the non-jury trial bifurcation of the Person Not to Possess ... Firearms57 (Information
D) charge from the balance of prosecuted offenses tried before the jury: The trial court's
57
18 Pa.C.S. § 6105.
36
supposed lack of jurisdiction; and The bifurcated non-jury trial being a violation of constitutional
rights. See Statement of Matters Complained, Nos. 7, 27, 29.
Even a cursory review of Defendant Mann's PCRA petition reveals that his original
collateral pleading did not advance a single averment in any manner challenging the Person Not
to Possess ... Firearms58 bifurcated non-jury trial. See Defendant's Petition, pp. 5-7. The
Defendant by way of his reply to the court's dismissal notice did allege certain additional claims
centered on the bifurcated non-jury trial, including but not limited to: His purportedly not
executing a waiver of jury trial form; Trial counsel's supposed incompetence for not assuring the
execution of a jury trial waiver form; The previously discussed Alleyne driven sentencing
challenge; and This court's purported lack of jurisdiction past addressed. See Petitioner's Reply,
pp.17-19,60,64.
With the exception of the meritless claim that this court did not enjoy requisite
jurisdiction and the failing sentencing legality claim discussed immediately above, 59 these error
assignments (Nos. 7, 27, 29) and any other argument Defendant Mann may pursue for purposes
of the pending appeal focused around the non-jury bifurcated trial should foremost be deemed
waived. To properly preserve an issue for review on appeal, any such claim must be first raised
before the trial court. Pa.R.A.P. 302(a). See also Commonwealth v. Spatz supra 610 Pa. at 71,
Fn. 17, 18 A.3d at 275, Fn. 17 and Commonwealth v. Jones supra 572 Pa. at 358-59, 815 A.2d at
5& Id.
59
While as noted prior, lack of a court's subject matter jurisdiction is non-waivable and may be raised at any stage
of the proceedings, Commonwealth v. Jones supra 593 Pa. at 301, 929 A.2d at 208 citing Commonwealth v. Little
supra 455 Pa. at 167, 314 A.2d at 272-73, any challenge to this court enjoying the necessary jurisdiction to lawfully
conducting this case's trial and legally imposing a sentence stemming from the Defendant's various, felony
convictions is just patently frivolous. See Section VI.
Although claims of an unlawful sentence are not subject to waiver and are to be reviewed, assuming courts then
have necessary jurisdiction, Commonwealth v. Munday supra 78 A.3d at 664, any sentencing legality challenge on
the instant record is without merit. See Section V.
37
607-08 citing Commonwealth v. Bond supra 572 Pa. at 599-600, 819 A.2d at 39. Defendant
Mann's PCRA petition advanced no non-jury trial bifurcation concerns. See Defendant's
Petition, pp. 5-7. Although he did belatedly aver allegations related to the non-jury trial
bifurcation per his dismissal notice reply, Defendant Mann neither sought nor did this court ever
permit him leave to amend his original collateral pleading. Commonwealth v. Rykard supra 55
A.3d at 1192. For these reasons, Defendant Mann's various collateral claims grounded in
arguments related to the non-jury trial bifurcation should be seen as waived. See Section I -
Waived Assignments of Error and Section II - The PCRA Court Erred When it Failed to Interpret
Defendant's Reply to Finley and 907 as an Amended Petition.
Assuming the non-jurisdictional aspects of the Defendant's challenges to the non-jury
trial bifurcation are not deemed waived, they still afford him no meritorious basis for Post
Conviction Relief Act remedy. As taken from his dismissal notice reply, the only two (2)
assertions of Defendant Mann that warrant further commentary are those about whether he
knowingly, intelligently and voluntarily waived his right to a trial by jury and the professional
stewardship of trial counsel in suggesting such a strategic course of action. See Petitioner's
Reply, pp. 17-19. On a review of the relevant case record, neither of these contentions find any
support.
Directly belying the Defendant's core argument that this court and/or his trial lawyer
were remiss in not reviewing with him and assuring he properly executed such a document, the
case record contains an original waiver of jury trial form signed and initialed by Defendant Mann
as well as trial counsel, the Assistant District Attorney and this court. See Waiver of Jury Trial
38
Form.60 See also Pa.R.Crim.P. 620. This comprehensive waiver form details by fourteen (14)
individually numbered paragraphs the Defendant's ability to understand, his contact with trial
counsel, the right to trial by jury, a description of the jury trial process, and the meaning of a
non-jury trial. See Waiver of Jury Trial Form. Salient to current considerations, this waiver
form provides, in part, per that below:
I have not been pressured, forced or threatened in any way by
anyone to give up my right to a jury trial and I have not been
promised anything in return for giving up my right to a jury trial.
I have had enough time to fully discuss my case, everything
contained in this Waiver of Jury Trial form and my decision with
my lawyer, and I give up my right to a jury trial and choose to be
tried before a judge alone without a jury. By placing my initials
on all of the lines provided, I am saying that I understand, agree
with, and have answered truthfully everything contained in this
Waiver of Jury Trialform.
See Waiver of Jury Trial Form -Paragraph Nos. 13, 14. (Emphasis added.)
Beyond his complete and appropriate execution of this waiver form, the court conducted
a related of-record colloquy with the Defendant. N.T. 12/16/09, pp. 10-17. As part of this of-
record discussion with Defendant Mann, the court clearly explained that the non-jury trial was
solely limited to the Person Not to Possess ... Firearms61 charge while the balance of prosecuted
offenses would be decided by the jury. N.T. 12/16/09, pp. 11-12, 14-16. During this colloquy
the Defendant affirmed, of-record, to the court that he had the opportunity to fully review with
his trial lawyer the waiver document as well as this course of proceeding, and he needed no
60
Appended to the Defendant's dismissal notice reply is a partial copy of this jury trial waiver form. For whatever
the reasons, the Defendant attached just a copy of the front sheet of this two (2) sided document. Undercutting his
assertions otherwise, even this partial copy of the jury trial waiver lists the above-captioned matter's docket number,
the Defendant's name, and his initials where appropriate next to each of the eleven (I I) paragraphs shown. See
Petitioner's Reply, pp. 17-18 and Exhibit "B."
61
18 Pa.C.S. § 6105.
39
additional time to further discuss with trial counsel the jury trial waiver form. N.T. 12/16/09, pp.
12-13, 16-17. The Defendant further confirmed, of-record, to this court that he had neither been
forced, threatened or pressured nor promised anything in exchange for waiving his right to trial
by jury. N.T. 12/16/09, pp. 15-16. The court concluded its colloquy of Defendant Mann as
follows:
The Court:
You understand that by proceeding in this fashion,
you are giving up your right to trial by jury and the
rights associated with that process as it relates,
again, only to this single offense?
Mr. Mann:
Yes.
The Court:
In light of everything you discussed privately with
Mr. Wray, your review and execution of the non-
jury waiver, you're in agreement and wish to
proceed as it relates to the firearm offense in what
amounts to a non-jury trial before me?
Mr. Mann:
Yes.
The Court:
Do you have any questions about anything that I've
gone over with you?
Mr. Mann:
No.
The Court:
... I find Mr. Mann's election to be knowing,
intelligent and voluntary . . . . Mr. Mann, do you
40
have any questions about anything before we have
the jury panel brought to the Courtroom?
Mr. Mann:
No.
N.T. 12/16/09, pp. 16-17.
From this review of the relevant case record, Defendant Mann in patent contradiction to
that suggested by his dismissal notice reply well understood the purpose of the non-jury trial
bifurcation, agreed to the same, and as this court then found knowingly, intelligently, and
voluntarily waived his right to trial by jury regarding the Person Not to Possess ... Firearms62
charge. See Waiver of Jury Trial Form. See also N.T. 12/16/09, pp. 10-17. Defendant Mann's
collateral assertions otherwise are simply of no moment. Commonwealth v. Pollard, 832 A.2d
517, 523-24 (Pa.Super. 2003) citing Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.
1999)("[A] defendant ... has a duty to answer questions truthfully. We [cannot] permit a
defendant to postpone the final disposition of his case by lying to the court . . . ."). See also
Commonwealth v. Cappelli, 340 Pa.Super. 9, 20-21, 489 A.2d 813, 819 (1985) quoting
Commonwealth v. Brown, 242 Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976).
As for the Defendant's collateral attack per the dismissal notice reply challenging his
lawyer's stewardship for seeking this non-jury trial bifurcation, trial counsel's strategic logic is
obvious. To sustain its burden of proof material to Persons Not to Possess ... Firearms,63 inter
alia, the prosecution must convince the ultimate fact finder beyond a reasonable doubt that at the
time of the firearm's possession a defendant was past convicted of a disqualifying felony.
18 Pa.C.S. § 6105(a)(l)(b). See also Pa.SSJI (Crim.) 15.6105. By seeking and securing the
62 Id.
63
18 Pa.C.S. § 6105.
41
prosecution's agreement to sever Information D - Person Not to Possess ... Firearms64 from the
balance of the various, violent crimes the Defendant was additionally charged, his trial attorney
assured that the jurors would hear no evidence that Defendant Mann was a past convicted felon.
N.T. 12/16/09 (Robing Room Conference), pp. 8-9. N.T. 12/16/09, pp. 9-16. N.T. 12/18/09, pp.
101-05. This tactical determination of trial counsel to bifurcate the firearms charge for purposes
of the non-jury trial was not only made with the Defendant's understanding and agreement, but
was also a strategic decision well within such broad discretion afforded defense counsel.
Commonwealth v. Thomas, 560 Pa. 249, 255-57, 744 A.2d 713, 716-17 (2000); Commonwealth
v. Speight, 544 Pa. 451, 461, 677 A.2d 317, 322 (1996); Commonwealth v. Pierce supra 515 Pa.
at 158, 527 A.2d at 975; and Commonwealth v. Mickens, 409 Pa.Super. 266, 277, 597 A.2d 1196,
1202 (1991). See also N.T. 12/16/09, pp. 10-17. Moreover, Defendant Mann has not and simply
cannot demonstrate on the instant record he suffered any associated prejudice resulting from this
understandable tactical strategy his trial attorney employed. Commonwealth v. Pierce supra 515
Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at
2064. See also Commonwealth v. Robinson supra 583 Pa. at 369, 877 A.2d at 439.
Defendant Mann's contentions centered around the non-jury trial bifurcation of the
Person Not to Possess ... Firearms65 charge from the balance of offenses tried before the jury are
wholly lacking. The Defendant's suggestions that he was unaware of the bifurcation and/or its
purposes are directly contradicted by the case record. This court properly found the Defendant
knowingly, intelligently and voluntarily waived his right to a jury trial regarding this severed
charge (Information D - Person Not to Possess ... Firearms).66 See Waiver of Jury Trial Form
64 Id.
65
18 Pa.C.S. § 6105.
66 Id.
42
and N.T. 12/16/09, pp. 10-17. See also Pa.R.Crim.P. 620. The decision of his trial lawyer to
sever this firearms charge from the balance of prosecuted offenses rested on a reasoned basis
designed to further the Defendant's interests and it most certainly cannot be demonstrated via the
instant record that but for this discretionary tactical decision of defense counsel the outcome of
the contemporaneous non-jury and jury trials would have been otherwise. Commonwealth v.
Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at
687, 104 S.Ct. at 2064. See also Commonwealth v. Thomas supra 560 Pa. at 255-57, 744 A.2d at
716-17; Commonwealth v. Speight supra 544 Pa. at 461, 677 A.2d at 3 22; Commonwealth v.
Pierce supra 515 Pa. at 158, 527 A.2d at 975; and Commonwealth v. Mickens supra 409
Pa.Super. at 277, 597 A.2d at 1202. Even assuming any such non-jurisdictional claims are not
found for purposes of the pending appeal to have been waived, these appellate complaints are
meritless. See Statement of Matters Complained, Nos. 7, 27, 29.
VIII. Claims of Collateral Counsel's Ineffectiveness.
Defendant Mann maintains related to collateral counsel this court erred through the
following: Granting Attorney Molineux's petition to withdraw despite his professional
incompetence in not purportedly complying with the Turner/Finley requirements; Adopting the
"No Merit Letter" given collateral counsel's alleged failure to investigate his claims; and/or Mr.
Molineux supposedly not communicating with him. See Statement of Matters Complained, Nos.
1, 2, 5. As these three (3) appellate complaints all pertain to the averred ineffectiveness of
Defendant Mann's PCRA attorney and at least to some extent are overlapping, they will be
addressed jointly. See Statement of Matters Complained, Nos. 1, 2, 5.
Foremost, an ineffectiveness of PCRA counsel error assignment is waived for appellate
review unless it is raised in a defendant's response to the court's dismissal notice.
43
Commonwealth v. Henkel supra 90 A.3d at 20 and Commonwealth v. Ford supra 44 A.3d at
1198 ("[W]hen counsel files a Turner/Finley no-merit letter to the PCRA court, a petitioner must
allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent
to dismiss.") citing Commonwealth v. Pitts supra 603 Pa. at 9, Fn. 4, 981 A.2d at 880, Fn. 4.
Unlike many of his other error assignments,67 Defendant Mann properly preserved those alleged
instances of his collateral lawyer's incompetence for purposes of the pending appeal having
advanced such a claim in his reply to this court's dismissal notice. See Petitioner's Reply, pp. 2-
16. See also Commonwealth v. Rykard supra 55 A.3d at 1192 and Pa.R.A.P. 302(a).
An examination of a PCRA attorney's supposed professional incompetence is conducted
under the general ineffectiveness of counsel standard. Id. citing Commonwealth v. Chmiel, 612
Pa. 333, 361-62, 30 A.3d 1111, 1127-28 (2011) citing Commonwealth v. Pierce supra 515 Pa. at
158, 527 A.2d at 975-76.
The law presumes counsel was not incompetent, and a defendant bears the burden to
prove otherwise. Commonwealth v. Uderra, 550 Pa. 389, 400, 706 A.2d 334, 339 (1998) and
Commonwealth v. Burkholder, 719 A.2d 346, 349 (Pa.Super. 1998). To prevail on a claim of
ineffective assistance of counsel, a defendant must demonstrate as follows: 1) The claim(s) are of
arguable merit; 2) Counsel had no reasonable basis for his or her questioned action(s) and/or
omission(s); and 3) Counsel's action(s) and/or inaction(s) prejudiced the defendant in that there
was a reasonable possibility that but for the act or omission challenged, the outcome of the
proceedings would have been different. Commonwealth v. Pierce supra 515 Pa. at 158, 527
A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064. See also
Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999); Commonwealth v. Fulton,
67
See Sections I and II.
44
547 Pa. 282, 291, 830 A.2d 567, 572 (2009) citing Commonwealth v. Pierce, 567 Pa. 186, 202,
786 A.2d 203, 213 (2001); Commonwealth v. Kimball, 555 Pa. 229, 312, 724 A.2d 326, 333
(1999); and Commonwealth v. Neal, 421 Pa.Super. 478, 482, 618 A.2d 438, 440 (1992). A
defendant bears the burden of proving all three (3) prongs of the ineffective standard and failure
to establish even just one ( 1) of these requisites warrants dismissal of the claim without further
consideration of the other two (2) additional, necessary proofs. Commonwealth v. Robinson
supra 583 Pa. at 369, 877 A.2d at 439.
The Strickland benchmark encompasses all constitutionally cognizable claims of
counsel's incompetence. Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing
Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064. Under the Strickland
standard, an allegation of ineffectiveness cannot be proven without a finding of prejudice that
except for the challenged act(s) or omission(s), the proceeding's outcome would have been
different. Commonwealth v. March, 528 Pa. 412, 414, 598 A.2d 961, 962 (1991) and
Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1166, 1174 (1986). Moreover, a
defendant's lawyer cannot be deemed incompetent for failing to raise and/or pursue meritless
claims. Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v.
Hutchinson supra 521 Pa. at 488, 556 A.2d at 372.
"A PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim
and may not rely on boilerplate allegations of ineffectiveness." Commonwealth v. Natividad
supra 595 Pa. at 209, 938 A.2d at 322-23 citing Commonwealth v. Spatz supra 587 Pa. at 99, 896
A.2d at 1250 (Finding the ineffectiveness claim insufficient when the appellant" ... failed to set
forth his claim pursuant to the three-prong Pierce test for establishing an ineffective assistance of
counsel claim.") See also Commonwealth v. Perry, 959 A.2d 932, 936 (Pa.Super. 2012) quoting
45
Commonwealth v. Natividad supra 595 Pa. at 209, 938 A.2d at 322-23. " ... [A]n undeveloped
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 any relief." Commonwealth v. Bracey supra 568 Pa. at 273, Fn. 4, 795 A.2d at 940,
Fn. 4. Furthermore, bald, undeveloped averments fail to satisfy a defendant's burden of
establishing entitlement to PCRA relief when such allegations are boilerplate, constitutional
claims. Commonwealth v. Hall supra 582 Pa. at 535, 872 A.2d at 1182 and Commonwealth v.
Washington supra 583 Pa. at 573-74, 880 A.2d at 540-41. A defendant asserting ineffective
assistance of counsel must relatedly show that this claimed professional incompetence " . . . so
undermined the truth-determining process that no reliable adjudication of guilt or innocence
could have taken place." See 42 Pa.C.S. § 9543(a)(2)(ii).
These three (3) error assignments of the Defendant maintain that his collateral counsel's
professional stewardship was ineffective, and it is his burden to demonstrate that his PCRA
attorney was so professionally incompetent. Commonwealth v. Uderra supra 550 Pa. at 400, 706
A.2d at 339 and Commonwealth v. Burkholder supra 719 A.2d at 349. Defendant Mann was
unable to respectively satisfy all three (3) requisite prongs of the Pierce-Strickland benchmark
regarding his attacks on collateral counsel's stewardship and these error assignments thus are
lacking. Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v.
Washington supra 466 U.S. at 687, 104 S.Ct. at 2064 and Commonwealth v. Robinson supra 583
Pa. at 369, 877 A.2d at 439.
In first attacking his appointed counsel, Defendant Mann contends generally Attorney
Molineux did not comply with the dictates of Commonwealth v. Finley supra, Commonwealth v.
46
Turner supra, and Commonwealth v. Friend supra. A review of the salient case record,
including collateral counsel's "No Merit Letter," reveals otherwise. See "No Merit Letter."
Mr. Molineux by his "No Merit Letter" fully described the scope of his collateral
examination. See "No Merit Letter," pp. 1-2. From Attorney Molineux's review of the
Defendant's petition and subsequent communications with him, appointed counsel listed with
particularity via the "No Merit Letter" those PCRA issues Defendant Mann wanted evaluated.
See "No Merit Letter," pp. 2, 9-15. Mr. Molineux then individually explained with references to
notes of testimony, case record references, and legal citations why these collateral claims were
meritless. See "No Merit Letter," pp. 2-15. Per that which his "No Merit Letter" details, the
comprehensive, advocate' s review collateral counsel undertook and completed on the
Defendant's behalf offers no support for the complaint on appeal that the Defendant's appointed
counsel was ineffective. To the contrary, Attorney Molineux in the lodging of his "No Merit
Letter" followed the applicable requisites of Commonwealth v. Finley supra, Commonwealth v.
Turner supra and Commonwealth v. Friend supra.Defendant Mann asserts through his extensive reply that his PCRA lawyer failed to
address numerous allegations of his prior attorneys' purported professional incompetence. See
Petitioner's Reply. A review of the Defendant's reply, his PCRA petition, and collateral
counsel's "No Merit Letter" reveals otherwise. See Statement of Matters Complained, No. 1.
See also "No Merit Letter."
Through his PCRA petition, the Defendant averred fourteen (14) collateral claims
followed by an additional fourteen (14) paragraphs further supporting those initial allegations.
See Defendant's Petition, pp. 5-7, 10-19. In his reply to this court's dismissal notice, Defendant
Mann then characterized that these accompanying sections contained other claims he believed
47
his collateral counsel should have additionally focused on while conducting his PCRA
evaluation. See Petitioner's Reply, p. 3.
Despite that asserted by the Defendant per his reply, a close inspection of his collateral
petition evidences these subsequent paragraphs were not entirely separate sections, but rather
were more detailed, supplementations paragraphs of his original fourteen (14) challenges. See
Defendant's Petition, pp. 10-19. Further evidencing such is each supporting paragraph
containing a reference to its corresponding original claim previously listed in the Defendant's
petition (E.g. " ... as set forth in 13(A) above, .... "). The collateral pleadings' subsequent
paragraphs are merely more detailed expansions of its initial averments. See Defendant's
Petition, pp. 10-19.
A review of Attorney Molineux's "No Merit Letter" shows that he did address those
claims Defendant Mann's PCRA petition advanced. See "No Merit Letter." See also
Defendant's Petition, pp. 4-7. Counsel's "No Merit Letter" discusses through eight (8)
numbered sections the Defendant's various grievances with several segments evaluating a range
of issues. See "No Merit Letter," pp. 9-15. Due to the nature of some of the Defendant's
contentions, Attorney Molineux was able to limit his explanatory commentary to general
conclusions versus others that required more detailed analysis. See "No Merit Letter," pp. 9-15.
For these reasons, it is clear that Defendant Mann's appellate complaint maintaining that
Attorney Molineux failed to satisfy the Finley/Turner requirements by not addressing all the
issues he sought to have examined is without support. See Statement of Matters Complained,
No. 1.
Subsequent to Attorney Molineux lodging his "No Merit Letter," this court undertook an
independent case review, including the Defendant's PCRA pleading, the trial record, the record
48
of the direct appeal, and appointed counsel's Finley correspondence. The only fault this court
found material to the "No Merit Letter" was its failure to recognize that certain of the collateral
claims being past litigated were not thus viable grounds for Post Conviction Relief Act remedy68
as well as the Superior Court's finding that the direct appeal lawyer's Anders brief was proper
and granting his withdrawal application undercut those PCRA claims targeting appellate
counsel's purported incompetence. See Dismissal Notice dated December 2, 2014, Fn. 1 and
"No Merit Letter." See also Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2010.
These conclusions of the court about that which appointed counsel did not by his "No Merit
Letter" address most certainly do not further Defendant Mann's challenge to his collateral
lawyer's stewardship.
Similar to his first attack targeting PCRA counsel's competence, the Defendant's claim
that his appointed attorney failed to engage in any investigation of the collateral petition's
averments is likewise just without adequate of record support. See Statement of Matters
Complained, No. 2. See also "No Merit Letter."
Mr. Molineux's examination of the salient record was comprehensive as detailed below
per his "No Merit Letter:"
I have reviewed the following in connection with the above-
referenced matter in preparing this letter:
1.) The pro se [sic] Petition for PCRA Relief filed by
Defendant on October 1, 2013;
2.) The Office of Judicial Support docket entries;
3.) The Superior Court of Pennsylvania docket entries;
4.) Supreme Court docket entries;
5.) Trial Court and Superior Court opinions;
6.) Transcripts of trial held on December 16, 17, and
18, 2009;
68
42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2).
49
7.) Transcript of sentencing hearing held on April 9,
2010;
8.) Correspondence with the Defendant requesting
information concerning the case and other
information in support of his pro se [sic] PCRA
Petition; and
9.) The law applicable to the issues raised by the
Defendant under the PCRA.
See "No Merit Letter," p. 1.
Armed with this wealth of material and documentation, applicable legal research was
conducted. See "No Merit Letter," pp. 1-2. Eight (8) descriptively detailed sections, along with
related issues as applicable, were specifically identified and addressed per those challenges
Defendant Mann wanted pursued. See "No Merit Letter," pp. 9-15. Resulting from this all-
inclusive review, Attorney Molineux lodged his sixteen (16) page, single spaced, "No Merit
Letter" replete with legal authorities, testimonial notes, and case record references. See "No
Merit Letter."
In support of his sweeping assertion that PCRA counsel "failed to investigate any of
Defendant's claims," Defendant Mann offers just generalities, unsubstantiated supposition drawn
from inferences taken in a light most favorable to himself, bald claims of issues being viable, and
expressions of displeasure with his collateral lawyer finally concluding this Post Conviction
Relief Act action lacked merit. See Petitioner's Reply, pp. 3-6.
The comprehensive, advocate's examination Mr. Molineux undertook and completed on
the Defendant's behalf belies this error assignment's generalized and otherwise unsupported
complaint that appointed counsel failed to investigate any collateral claims raised in his PCRA
petition. See "No Merit Letter."
Defendant Mann's final assertion as to his collateral counsel's purported inadequate
representation maintains Attorney Molineux failed to meet and/or correspond with him. See
50
Statement of Matters Complained, No. 3. The Defendant however was unable to offer any form
of meaningful support for such a contention and relatedly demonstrate that it enjoys merit.
Attorney Molineux's "No Merit Letter" specifies his collateral review included, inter
alia, "[ c ]orrespondence with the Defendant requesting information concerning the case and other
information in support of his pro se [sic] PCRA Petition[.]" See "No Merit Letter," p. 1.
Conversely, Defendant Mann avers that Attorney Molineux did not have any communication
with him. See Statement of Matters Complained, No. 5. In support of his claim that collateral
counsel did not even once contact him, Defendant Mann appended an "affidavit" to his dismissal
notice reply. See Petitioner's Reply, Affidavit. This "affidavit" was seemingly drafted by a
fellow inmate of the Defendant and alleges Mr. Molineux was also past appointed as his
collateral attorney and supposedly was ignored similarly by Mr. Molineux. See Petitioner's
Reply, Affidavit - Exhibit "A."
Despite providing this "affidavit," Defendant Mann by way of this appellate complaint
has failed to demonstrate that his counsel outright failed to communicate with him. Not only is
the attached "affidavit" wholly unsupported, but even if this court accepted this "affidavit" as
authentic, its suggested argument that once an attorney has been so ineffective he is forever
subsequent incompetent would be akin to a Commonwealth assertion that because a defendant
was past convicted, he must now again be guilty. Such an argument is just not persuasively
credible. The Defendant's third appellate complaint averring his collateral counsel's
professional ineffectiveness is without merit. See Statement of Matters Complained, No. 5.
Contrary to the Defendant's assertions, Attorney Molineux acted competently through his
lodging of the "No Merit Letter." See "No Merit Letter." As Defendant Mann's appointed
PCRA counsel, Attorney Molineux was free to reach the conclusions he believed in his best
51
professional judgment warranted regarding the Defendant's PCRA petition and any other
possible collateral claims. See Commonwealth v. Finley, 379 Pa.Super. 390, 397, 550 A.2d 213,
217 (Pa.Super. 1988); Commonwealth v. Chmiel supra 612 Pa. at 468, 30 A.3d at 1190-91; and
Commonwealth v. Meadows, 567 Pa. 344, 365, 787 A.2d 312, 324 (2001). Defendant Mann's
understandable disappointment that his PCRA lawyer found on his behalf no viable Post
Conviction Relief Act grounds to pursue is not a cognizable basis warranting a finding that
Attorney Molineux provided ineffective, collateral stewardship or that this court should not have
dismissed the Defendant's PCRA Petition.
Moreover, a defendant's lawyer cannot be found professionally incompetent for failing to
raise and/or pursue baseless claims. Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at1115 and Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at 372. This standard is
as well applicable concerning assertions of a PCRA counsel's supposed ineffectiveness and their
review of claims against a prior lawyer's claimed ineffectiveness. "Post-trial counsel will not be
deemed ineffective for failing to raise and preserve meritless challenges to the effectiveness of
trial counsel." Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) quoting
Commonwealth v. Thuy, 424 Pa.Super. 482, 498, 623 A.2d 327, 335 (1993).
As Defendant Mann failed to satisfy his burden of demonstrating his counsel's
professional incompetence by averring only blanket complaints and respectively failing to
establish all three (3) requisite prongs of the Pierce-Strickland standard, his challenges targeting
PCRA counsel do not entitle him to collateral relief. Commonwealth v. Pierce supra 515 Pa. at
158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at 2064.
See also Commonwealth v. Robinson supra 583 Pa. at 369, 877 A.2d at 439; Commonwealth v.
Uderra supra 550 Pa. at 400, 706 A.2d at 339; and Commonwealth v. Burkholder supra 719
52
A.2d at 349. The Defendant's error assignments attacking his collateral lawyer's professional
competence are without merit. See Statement of Matters Complained, Nos. 1, 2, 5.
IX. Trial Counsel's Ineffectiveness Concerning Prosecutorial Misconduct.
By this appellate complaint, Defendant Mann maintains that his trial lawyer was
ineffective on his not objecting to various statements made by the prosecution during its
summation. See Statement of Matters Complained, No. 20. More specifically, the Defendant via
his petition points to nine (9) separate comments the Assistant District Attorney offered during
her closing argument and maintains that in each and every instance his trial attorney's failure to
object constitutes actionable professional incompetence.69 See Defendant's Petition, pp. 6,
13-15. These similar attacks on his trial lawyer's stewardship do not further Defendant Mann's
collateral cause.
As it relates to those of the nine (9) claimed prosecutorial closing arguments regarding
the Defendant and/or his criminal confederates being armed with various firearms, the same on
the instant record are not a basis on which Post Conviction Relief Act remedy can rest.
In response to direct appeal counsel's lodging of an Anders brief, the Defendant filed a
response with the Superior Court, inter alia, maintaining that during her summation the Assistant
District Attorney made improper argument. See Superior Court No. 1581 EDA 2010, Opinion
dated July 9, 2012, pp. 7, 11-12. In rejecting such an allegation of prosecutorial misconduct, the
Superior Court opined per that below:
Hence, we cannot accept his claim that the district attorney
accused Appellant of using five guns. Appellant then continues in
69
Although this error assignment is so broadly stated that it could be seen to include almost any of the Assistant
District Attorney's comments argued during her closing, a review of the Defendant's PCRA petition in combination
with the generally stated appellate complaint allow for this court to discern that which it most probably advances on
appeal. See Statement of Matters Complained No. 20 and Defendant's Petition, pp. 6, 13-15.
53
this portion of his brief by suggesting that the district attorney
engaged in improper closing remarks ....
Defense counsel maintained that Mr. Glover described the gun that
Appellant possessed as a 'big, black gun' ... while the ballistics
tests indicated that the bullet discovered in that victim's van was
fired from a silver firearm later found abandoned in Mr. Glover's
home. In attempting to reconcile this apparent discrepancy in the
proof, the prosecutor first stated that she did not recall Mr. Glover
describing the firearm as large and black. She continued that if the
witness did describe Appellant's weapon in that manner, then
based upon Mr. Glover's description of his interaction with
Appellant, it would have been possible that Appellant possessed
two weapons. She noted that Mr. Glover pushed Appellant's hand,
which could have caused the black gun to fall, and that Appellant
could then have retrieved a second, silver gun, which he used to
shoot at the fleeing van and then left in the house while fleeing
police. Hence, the remarks herein were in fair response to the
defense's characterization of the evidence and reasonable
inferences that could be derived from the evidence presented.
See Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 11-12.
Eligibility for collateral relief requires that a defendant must plead and prove the
ineffective assistance of counsel as well as that the issue underlining any such allegation of the
defense lawyer's supposed professional incompetence has not been past litigated. 42 Pa.C.S.
§§ 9543(a)(2)(ii)(3) and 9544(a)(2). Accordingly, those comments the Assistant District
Attorney offered during the Commonwealth's closing referencing the Defendant and/or his
co-conspirators being armed with numerous firearms and/or brandishing those handguns while
perpetrating their varied criminality cannot now be grounds for his requested collateral relief as
this allegation of prosecutorial misconduct was past decided adversely to him by the Superior
Court. Id. See also Superior Court No. 1581 EDA 2010, Opinion dated July 9, 2012, pp. 11-12.
Like that past determined by the Superior Court, the balance of Defendant Mann's
claimed instances of improper argument during the prosecution's closing are as well meritless.
54
The Pennsylvania Superior Court has held that comments made during a closing
argument" ... must be considered in the context of the entire summation." Commonwealth v.
Johnson, 719 A.2d 778, 790 (Pa.Super. 1998), appeal denied, 559 Pa. 689, 739 A.2d 1056(1999) (Emphasis added). See also Commonwealth v. Ligons, 565 Pa. 417, 430, 773 A.2d 1231,
1238 (2001) and Commonwealth v. Brown, 911 A.2d 576, 579 (Pa.Super. 2006) citing
Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006) quoting Commonwealth v.
Correa, 444 Pa.Super. 621, 624, 664 A.2d 607, 609 (1995). The Superior Court in
Commonwealth v. Raffensberger, 291 Pa.Super. 193, 207, 435 A.2d 864, 870-71 (1981) found
that the scope of this contextual review extends even further to include the contents of the entire
case. " ... {A]llegedly prejudicial remarks must be read in the context of the case as a whole,
with a particular view to the evidence presented and reasonable inferences drawn therefrom, in
order to determine whether they are indeed prejudicial." Id. (Emphasis added). See
Commonwealth v. Boone, 286 Pa.Super. 384, 398-400, 428 A.2d 1382, 1389-90 (1981) and
generally Commonwealth v. Bullock, 284 Pa.Super. 601, 426 A.2d 657 (1981).
During the course of closing summations, "[t]he prosecutor is free to argue that the
evidence leads to the conclusion of guilt, and is permitted to suggest all favorable and reasonable
inferences that arise from the evidence." Commonwealth v. Chamberlain, 612 Pa. 107, 153, 30
A.3d 381, 408 (2011) citing Commonwealth v. Sam, 535 Pa. 350, 362, 635 A.2d 603, 608 (1993).
A new trial will not be considered necessary "[w]here the prosecutor's arguments are supported
by the evidence and contain inferences which are reasonably derived therefrom." Id. citing
Commonwealth v. Bronshtein, 547 Pa. 460, 485, 691 A.2d 907, 919 (1997). See also
Commonwealth v. LaCava, 542 Pa. 160, 181, 666 A.2d 221, 231 (1995) and Commonwealth v.
Hardcastle, 519 Pa. 236, 254, 546 A.2d 1101, 1109 (1988).
55
Furthermore, "[t]he prosecutor may ... argue to the jury that the evidence establishes the
guilt of the defendant and that certain facts in evidence are conclusive of such guilt."
Commonwealth v. Kaufman, 307 Pa.Super. 63, 71, 452 A.2d 1039, 1043 (1982) citing
Commonwealth v. Oglesby, 274 Pa.Super. 586, 595, 418 A.2d 561, 565 (1980). During the
course of his closing summation, a prosecutor may as well " ... attempt to meet the arguments
made by defense counsel in his summation." Commonwealth v. Kelly, 319 Pa.Super. 204, 211,
465 A.2d 1301, 1305 (1983) (Emphasis added) citing Commonwealth v. Van Cliff, 483 Pa. 576,
584, 397 A.2d 1173, 1177 (1979). See also Commonwealth v. Robinson supra 583 Pa. at 383,
877 A.2d at 448 citing Commonwealth v. Trivigno, 561 Pa. 232, 244, 750 A.2d 243, 249 (2000).
See also Commonwealth v. Hardcastle supra 519 Pa. at 254, 546 A.2d at 1109 quoting
Commonwealth v. Barren, 501 Pa. 493, 498, 462 A.2d 233, 235 (1983).
In a closing argument, " ... it is improper for a prosecutor to offer any personal opinion
as to the guilt of the defendant or the credibility of the witnesses ... ;" however, an Assistant
District Attorney may " ... summarize the evidence presented, to offer reasonable deductions and
inferences from the evidence, and to argue that the evidence establishes the defendant's guilt."
Commonwealth v. Thomas, 618 Pa. 70, 54 A.3d 332, 338 (2012) citing Commonwealth v.
Hutchinson, 611 Pa. 280, 25 A.3d 277, 307 (2011) and Commonwealth v. Chamberlain supra
612 Pa. at 152, 30 A.3d at 408. The accepted goal of the prosecutor's closing summation is to
" ... present the facts in a manner that will lead the jury to a dispassionate and objective
evaluation of those facts and will produce a judgment warranted by the evidence."
Commonwealth v. Turner, 390 Pa.Super. 216, 222, 568 A.2d 622, 625 (1989) citing
Commonwealth v. Davis, 363 Pa.Super. 562, 583, 526 A.2d 1205, 1216 (1987), allocatur denied,
518 Pa. 624, 541 A.2d 1135 (1988).
56
A Commonwealth's attorney will not be found to have advocated impermissibly and
hence committed "reversible error" during her closing " ... unless the unavoidable effect of such
comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward
the defendant so that they could not weigh the evidence objectively and render a true verdict."
Commonwealth v. Nicholson, 308 Pa.Super. 370, 384, 454 A.2d 581, 588 (1982) quoting
Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). See also
Commonwealth v. Boone, 287 Pa.Super. 1, 6, 428 A.2d 1382, 1389 (1981); Commonwealth v.
Ligons supra 565 Pa. at 430, 773 A.2d at 1238 citing Commonwealth v. Morales, 549 Pa. 400,
423, 701 A.2d 516, 527-28 (1997); and Commonwealth v. Turner supra 390 Pa.Super. at 223,
568 A.2d at 625 (Referred to in Turner as the "unavoidable prejudice test"). "Whether a reversal
of judgment is required depends on whether the remarks made by the prosecutor are of such a
nature that they would seriously threaten the jury's objectivity and deprive the accused of a fair
trial." Commonwealth v. Gruff, 822 A.2d 773, 782 (Pa.Super. 2003) quoting Commonwealth v.
Carter, 537 Pa. 233, 264, 643 A.2d 61, 76 (1994). The court in Commonwealth v. Guilford
relatedly held that "[a] new trial is not mandated every time a prosecutor makes an intemperate
or improper remark." Commonwealth v. Guilford, 861 A.2d 365, 371 (Pa.Super. 2004). See also
Commonwealth v. Ervin, 766 A.2d 859, 864 (Pa.Super. 2000).
The decision as to the prejudicial quality of the statements by the prosecution offered in
summation is for the trial judge. Commonwealth v. Williams, 289 Pa.Super. 388, 393, 433 A.2d
505, 508 (1981) citing Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975).
Moreover, " ... the remedy to be applied in each case is within the discretion of the trial judge."
Id. See also Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740, 741 (1971).
57
When viewed by the applicable standards set forth immediately above, the Defendant's
remaining alleged instances of the Assistant District Attorney making improper and prejudicial
argument during the Commonwealth's summation are readily seen to be meritless. As for those
factual comments the Defendant contends were argued by the prosecution contrary to the trial
testimony, this court in its pre-charge and immediately before counsel's summations, as well as
in its final charge repeatedly reminded the jury that it was their recollection of the evidence alone
which was to guide them throughout deliberations and not any factual comment of an attorney or
even the court otherwise. N.T. 12/16/09, pp. 111-12, 114, 121-22. N.T. 12/17/09, pp. 157-58.
N.T. 12/18/09, pp. 53-54, 56, 88, 91-92. See also Defendant's Petition, p. 17. "Absent evidence
to the contrary, the jury is presumed to have followed the trial court's instructions."
Commonwealth v. 0 'Hannon, 557 Pa. 256, 262, 732 A.2d 1193, 1196 (1999) citing
Commonwealth v. LaCava supra 542 Pa. at 182, 666 A.2d at 231; Commonwealth v. Brown, 567
Pa. 272, 289, 786 A.2d 961, 971 (2001) citing Commonwealth v. Travers, 564 Pa. 362, 768 A.2d
845 (2001) citing Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995): and
Commonwealth v. Spotz supra 587 Pa. at 57, 896 A.2d at 1224 quoting Commonwealth v. Brown
supra 567 Pa. at 289, 786 A.2d at 871 and Commonwealth v. O'Hannon supra 557 Pa. at 262,
732 A.2d at 1196.
The prosecutor during her closing argument was allowed to " ... argue that the evidence
leads to the conclusion of guilt, and is permitted to suggest all favorable and reasonable
inferences that arise from the evidence." Commonwealth v. Chamberlain supra 612 Pa. at 153,
30 A.3d at 408 citing Commonwealth v. Sam supra 535 Pa. at 362, 635 A.2d at 608. On
reviewing this appellate complaint in the context of the trial as a whole, the Assistant District
Attorney was within the bounds assigned of her prosecutorial duties to "argue the evidence,"
58
offer reasoned inferences based upon the evidence that had been presented at trial, and attempt to
meet the arguments made by defense counsel in his closing. See Commonwealth v. Kelly supra319 Pa.Super. at 211, 465 A.2d at 1305 citing Commonwealth v. Van Cliff supra 483 Pa. at 584,
397 A.2d at 1177.
Further, the prosecution's challenged statements read in the context of the entire case,
including both defense counsel's and the prosecutor's witness examinations and closing
summations, clearly reveals these comments were not impermissible. The Commonwealth's
attorney argued the evidence that was offered at trial and did not "prejudice the jury, forming in
their minds fixed bias and hostility toward the defendant so that they could not weigh the
evidence objectively and render a true verdict." Commonwealth v. Nicholson supra 308
Pa.Super. at 384, 454 A.2d at 588 quoting Commonwealth v. McNeal supra 456 Pa. at 400, 319
A.2d at 673. Hence, Attorney Wray may not be deemed professionally ineffective for failing to
object to these comments and arguments of the prosecution as a lawyer need not pursue a
meritless course of action. Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and
Commonwealth v. Hutchinson supra 521 Pa. at 488, 556 A.2d at 372.
X Trial Counsel's Failure to Interview and Subpoena for Trial Testimony co-Defendant
Edwin Clark.
Defendant Mann via this appellate complaint maintains that his trial attorney was
ineffective for not interviewing, subpoenaing, and seemingly calling as a defense trial witness
co-defendant, Edwin Clark. See Statement of Matters Complained, No. 17. See also
Defendant's Petition, p. 4. While baldly asserting co-defendant Clark would have been available
at trial to testify for the defense and his testimony would have been exculpatory, a review of the
59
instant record as well as that in the matter of Commonwealth v. Clark, No. 5071-09 - Delaware
County, readily reveals to the contrary.
Co-defendant Edwin Clark entered on December 15, 2009, before this court an open
guilty plea to the following Criminal Informations: Information A - Robbery; 70 Information B -
Criminal Conspiracy to commit Robbery;" Information C - Burglary;72 and Information G -
Person Not to Possess ... Firearms.73 See Commonwealth v. Clark, No. 5071-09 - Delaware
County, Criminal Informations. During his guilty plea hearing, inter alia, co-defendant Clark
was placed under oath and colloquied by this court. The court's colloquy included describing for
this co-defendant the necessary elements of the crime of Criminal Conspiracy to commit
Robbery.74 When defining for co-defendant Clark this charge of Criminal Conspiracy to commit
Robbery,75 the court specifically identified Defendant Mann as one of those other persons with
whom co-defendant Clark agreed that one or more of the criminal confederates would engage in
conduct constituting the crime of robbery. 18 Pa.C.S. § 903(a)(l). Immediately after so
detailing for him this crime of conspiring with Defendant Mann to commit robbery, the court
inquired directly of co-defendant Clark whether this was the offense of Criminal Conspiracy to
commit Robbery76 to which he was pleading guilty and he unequivocally responded, "Yes." To
further memorialize this plea of guilty, the court requested and co-defendant Clark additionally
signed Information B - Criminal Conspiracy to Commit Robbery'" further acknowledging, of
record, he had conspired with Defendant Mann to commit the at issue robbery. On the request of
70
18 Pa.C.S. § 3701.
71
18 Pa.C.S. § 903(3701).
72
18 Pa.C.S. § 3502.
73
18 Pa.C.S. § 6105.
74
18 Pa.C.S. § 903(3701).
75 Id.
76
18 Pa.C.S. § 903(3701).
77 Id.
60
the co-defendant's lawyer, inter alia, a sentencing date of February 2, 2010, was set and a
presentence investigation directed. The court on February 2, 2010, as then scheduled imposed
sentence. See Commonwealth v. Clark, No. 5071-09 - Delaware County, Information B and
Defendant's Guilty Plea Statement.
Co-defendant Clark at the time of Defendant Mann's trial having pled guilty, but not
been sentenced, most certainly yet enjoyed his privilege against self-incrimination. The Superior
Court per that below has recognized that a defendant in the same case procedural posture as
co-defendant Clark when Defendant Mann proceeded to trial still has the protections of the
United States Constitution's 5th Amendment and Article I, § 9 of the Pennsylvania Constitution:
After conviction, direct appeal and collateral remedies available to
an individual may result in a new trial. It is apparent, then, that a
conviction does not eliminate the possibility that an individual will
later be prosecuted for the crime about which he is asked to testify.
Accordingly, the weight of authority permits a witness whose
conviction has not been finalized on direct appeal to invoke the
privilege against self-incrimination and refuse to testify about the
subject matter which formed the basis of his conviction.
Commonwealth v. Melvin, 79 A.3d 1195, 1201 (Pa.Super. 2013) quoting Commonwealth v.
Rodgers, 472 Pa. 435, 455, 372 A.2d 771, 780 (1997)(plurality).
For purposes of his guilty plea and resultant sentence, co-defendant Clark was
represented by Arthur J. Modesti, Esquire a very experienced trial division member of the
Delaware County Public Defender's Office. Undoubtedly, had Attorney Wray approached Mr.
Modesti and inquired about co-defendant Clark being made available to testify, the response
would not have been favorable. Certainly, Mr. Modesti would have been mandated to counsel
co-defendant Clark that his privilege against self-incrimination remained viable and should be
invoked in the event Attorney Wray via subpoena attempted to compel his testimonial
appearance. Moreover, Mr. Modesti would have advised co-defendant Clark that the testimony
61
the Defendant alleges he would have offered was materially at odds with his sworn guilty plea
colloquy that he and Defendant Mann conspired to commit the robbery potentially subjecting
him to a perjury prosecution. See 18 Pa.C.S. § 4902. See also Defendant's Petition, pp. 5, 12.
A collateral attack related to a known witness being overlooked by defense counsel at
trial was discussed by the Pennsylvania Supreme Court below:
When raising a failure to call a potential witness claim, the PCRA
petitioner satisfies the performance and prejudice requirements of
the Strickland test by establishing that: (1) the witness existed; (2)
the witness was available to testify for the defense; (3) counsel
knew of, or should have known of, the existence of the witness; (4)
the witness was willing to testify for the defense; and ( 5) the
absence of the testimony for the witness was prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Johnson, 600 Pa. 329, 351, 966 A.2d 523, 536 (2009) quoting Commonwealth
v. Washington, 592 Pa. 698, 721, 927 A.2d 586, 599 (2007).
Although co-defendant Clark unquestionably existed and Attorney Wray knew or should
have known of his existence, the balance of that found by the Supreme Court above necessary to
establish an ineffective counsel claim grounded on the failure to call a trial witness is at bar
clearly not established salient to co-defendant Clark.
Because co-defendant Clark at the time of Defendant Mann's trial still enjoyed his
privilege against self-incrimination together with the expected and understandable advice of Mr.
Modesti that he invoke the same, Edwin Clark on the instant record was not so available for the
defense to testify. Other than the Defendant's brash assertions, the instant record is devoid of his
affidavit or any other evidence even suggesting the co-defendant was willing to testify.
Moreover, had he set aside his privilege against self-incrimination contrary to Mr. Modesti's
understandably expected counsel, ignored Mr. Modesti's warnings about a subsequent perjury
prosecution and testified on Defendant Mann's behalf, co-defendant Clark to further the defense
62
would have had to withstand a withering cross examination, including but not limited to the
prosecution playing for the jury an audio recording of his guilty plea in which he unequivocally
while under oath unquestionably acknowledged that he and Defendant Mann conspired to
commit the at issue robbery. The absence of such testimony did not prejudice the Defendant so
as to deny him a fair trial. Id.In light of the foregoing, Defendant Mann has simply failed to sufficiently demonstrate
that Attorney Wray's election not to pursue as a trial witness and/or call co-defendant Edwin
Clark is an instance of ineffectiveness. At bar, there is simply no evidence co-defendant Clark
would have testified per that which the Defendant baldly avers. See Defendant's Petition, p. 12.
Starkly to the contrary, the co-defendant's of record guilty plea acknowledgment to this court
while under oath that he and Defendant Mann conspired to commit the at issue robbery patently
suggest his trial testimony would have been anything other than helpful to the Defendant. See
Commonwealth v. Clark, No. 5071-09 - Delaware County, Information - B - Criminal
Conspiracy to commit Robbery78 and Co-Defendant's Guilty Plea Statement. Attorney Wray's
not pursuing and using co-defendant Clark at trial as a defense witness can be more readily seen
as a reasoned exercise of a trial lawyer's broad discretionary decision making. See
Commonwealth v. Thomas supra 560 Pa. at 255-57, 744 A.2d at 716-17. See also
Commonwealth v. Mickens supra 409 Pa.Super. at 277, 597 A.2d at 1202. Most certainly, the
totality of material circumstances surrounding the co-defendant's plea of guilty and resultant
sworn acknowledgment prior to this case's trial, inter alia, that he and Defendant Mann
conspired to commit the at issue robbery do not demonstrate the requisite prejudice necessary for
collateral relief. Commonwealth v. Natividad supra 595 Pa. at 209, 938 A.2d at 322-23 citing
78
18 Pa.C.S. § 903(3701).
63
Commonwealth v. Spotz supra 587 Pa. at 99, 896 A.2d at 125; and Commonwealth v. Bracey
supra 568 Pa. at 273, Fn. 4, 795 A.2d at 940, Fn. 4. Defendant Mann not having met the
applicable Strickland review established in Johnson, this error assignment is meritless.
Commonwealth v. Johnson supra 600 Pa. at 351, 966 A.2d at 536 quoting Commonwealth v.
Washington supra 592 Pa. at 721, 927 A.2d at 599; and Commonwealth v. Pierce supra 515 Pa.
at 158, 527 A.2d at 975 citing Strickland v. Washington supra 466 U.S. at 687, 104 S.Ct. at
2064.
XI. Trial Counsel's Ineffectiveness in Securing a Stipulation that Two (2) oftlte Firearms
were Past Reported Stolen.
Through this appellate complaint, Defendant Mann maintains that Attorney Wray
incompetently "... conceded defendant's guilt by stipulation to false other crimes evidence
[sic]." See Statement of Matters Complained, No. 24. More specifically, the Defendant is
referencing his trial lawyer's requesting and obtaining from the prosecution a stipulation that two
(2) of the recovered firearms (C-12 - Smith and Wesson Silver .38 Special Revolver
Commonwealth Exhibits and C-13 - Colt 1991 Model Black .45 Caliber Handgun) were past
reported, collectively stolen from a residence in Uniontown, Pennsylvania. N.T. 12/17/09, pp.
45-49. Beyond the hyperbole of characterizing this stipulation as "conced[ing] defendant's
guilt," Defendant Mann simply ignores the salient trial record and the context in which this
agreement of the attorneys was sought and resultantly argued by defense counsel to reach the
conclusion such was an instance of his trial lawyer's alleged incompetence.79 See Defendant's
Petition, pp. 5, 11. As the Defendant has failed to adequately demonstrate that his trial lawyer
securing this stipulation meets the requisites necessary for an ineffective counsel finding, this
79
For those reasons detailed per Section XII, this stipulation did not mandate the court salient to this stipulation
engage the Defendant in a guilty plea like colloquy.
64
appellate complaint is meritless. Commonwealth v. Uderra supra 550 Pa. at 400, 706 A.2d at339 and Commonwealth v. Allen supra 557 Pa. at 144, 732 A.2d at 587.
Because this error assignment clearly implicates a matter of trial strategy, it must also be
recognized that with respect to whether the actions and/or omission of a defendant's attorney
were reasonable, defense counsel is afforded broad discretion to determine tactics and strategy.
Commonwealth v. Thomas supra 560 Pa. at 255-57, 744 A.2d at 716-17. The benchmark is not
whether other alternatives were more reasonable employing a hindsight evaluation of the case
record, but whether counsel's decision had any sensible basis to effectuate or advance a
defendant's interests. Commonwealth v. Speight supra 544 Pa. at 461, 677 A.2d at 322 and
Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975. The fact that the strategy of a
defendant's lawyer in a given case was not successful is irrelevant as long as the challenged act
and/or inaction "may be viewed" as reasonably designed to benefit the client. Commonwealth v.
Mickens supra 409 Pa.Super. at 277, 597 A.2d at 1202.
Salient to current considerations, the trial record may be fairly summarized as follows.
Victim Ryan Glover and Defendant Mann for over ten (10) years were known to each other from
having lived and grown to adulthood in the same West Philadelphia neighborhood. N.T.
12/16/09, pp. 163-65. Obviously, having knowledge of Mr. Glover's residence and with timing
suggesting some measure of familiarity with his activities, at approximate 2 :00 A.M., just as Mr.
Glover was returning home, Defendant Mann descended on him waiving a gun in his face and
demanding, "Pussy, get out of the van." N.T. 12/16/09, pp. 160-61. Fleeing in his vehicle from
the menacing, gun toting Defendant, Mr. Glover benefitted from at least some measure of good
fortune when shot at by Defendant Mann as the bullet passed through a side window of his van
and missed striking Mr. Glover only by mere inches before lodging in the vehicle's speedometer.
65
N.T. 12/16/09, pp. 161-67, 297-301. On Mr. Glover's escape, Defendant Mann, now joined by
his two (2) co-defendants, broke through the locked, basement door of the Glover residence and
swarmed into the home's living room, waking at gunpoint, the sleeping Kim Weeks. N.T.
12/16/09, pp. 160-61, 218, 222-28, 256. Mr. Weeks was threatened at gunpoint to lie facedown
on the living room floor and in no uncertain terms instructed that he not look at his assailants.
N.T. 12/16/09, pp. 219-32, 249-50. As he fearfully lay on the living room floor, Mr. Weeks
heard the Defendant and his criminal confederates moving about the home ransacking various
areas of both the residence's first and second floors in their self-described quest for money. N.T.
12/16/09, pp. 234-38. The expeditious response of less than ninety (90) seconds by the Upper
Darby Police Department and the effective reaction of law enforcement personnel once on scene
to this ongoing home invasion robbery cut short the criminal efforts of Defendant Mann and his
co-defendants forcing the group to flee the home through its bathroom skylight. N.T. 12/16/09,
pp. 258-71, 292. N.T. 12/17/09, pp. 11. For the next so many hours, Defendant Mann and co-
defendant Clark kept police at bay while running about row homes' common roof top, until
finally acknowledging the inevitable, they surrendered to the surrounding ring of law
enforcement personnel below, co-defendant Jeffrey Mason, broke through the skylight of a
neighboring residence only to be apprehended by police while hiding in the basement of that
home. N.T. 12/16/09, pp. 266-89. N.T. 12/17/09, pp. 35-36.
Once police authorities had finally taken the Defendant and his criminal confederates into
custody, the Glover home was searched by investigators. N.T. 12/17/09, p. 14. On a small
landing area on the residence's first floor near the kitchen and hanging on the door going into the
kitchen, police recovered a brown Louie Vuitton, style bag in which there was a Sites Spectre-
HC firearm and a Colt 1991 Model Black .45 caliber handgun. N.T. 12/17/09, pp. 18, 31, 44.
66
See also Commonwealth Exhibits C-13 - Colt 1991 Model Black .45 Caliber Handgun, and C-14
- Sites Spectre-HC Firearm. There was a magazine in the Colt firearm that was loaded and one
(1) round chambered in the gun such that the weapon was ready to be fired. N.T. 12/17/09, pp.
18-19. The Sites Spectre-He 9 mm did not have a chambered round, but its magazine contained
twenty-seven (27) bullets. N.T. 12/1709, p. 21. Upstairs from a closet near the home's
bathroom, police recovered a silver, Smith and Wesson .38 Special revolver which had one (1)
spent casing in it and four (4) live rounds. N.T. 12/17/09, pp. 22-23, 29-30, 32. See also
Commonwealth Exhibit C-12 - Smith and Wesson Silver .38 Special Revolver. From that same
upstairs closet, police additionally recovered a .40 caliber Glock firearm with its magazine in
place and a chambered round. N.T. 12/17/09, pp. 23, 26, 28. See also Commonwealth Exhibit
C-11 - .40 Caliber Glock 23 Firearm. Police also recovered from this closet in proximity to the
.40 caliber Glock another firearm, a fully loaded Smith and Wesson .44 Magnum revolver. N.T.
12/17/09, pp. 23-24, 26, 29. See also Commonwealth Exhibit C-10 - Smith and Wesson .44
Magnum Revolver.
Buccal swabs for purposes of DNA comparative testing were obtained by investigators
from the Defendant and his co-conspirators. N.T. 12/17/09, pp. 36-37. See also Commonwealth
Exhibit C-20 - Laboratory Report L09-04372-4 and Stipulation 2 - Laboratory Report
L09-04372-1. Regarding those various items investigators submitted for such testing, including
but not limited to the five (5) seized firearms, Defendant Mann was "matched" to only a blood
swabbing from the roof of a nearby home. N.T. 12/17/09, pp. 84-85. See also Commonwealth
Exhibit C-20 - Laboratory Report L09-04372-4 - Conclusion No. 7. This same DNA
comparative analysis revealed a "match" to co-defendant Clark and the genetic material
recovered from the .40 caliber Glock 23 firearm as well as a "match" to co-defendant Mason and
67
the genetic material recovered from the black, Colt 1991 Model .45 caliber handgun. N.T.
12/17/09, pp. 70-71, 86-88, 90-91. See also Commonwealth Exhibits C-20 - Laboratory Report
L09-04372-4; C-11 - .40 Caliber Glock 23 Firearm; and C-13 - Colt 1991 Model Black .45
Caliber Handgun.
Resulting from his analysis, a Pennsylvania State Police firearm identification and
toolmark expert found that the discharged and mutilated jacket bullet (Commonwealth Exhibit
C-15) police recovered from the dashboard of Mr. Glover's van was fired from the seized silver,
Smith and Wesson .38 Special Revolver. N.T. 12/17/09, pp. 108-13, 123-26. See also
Commonwealth Exhibits C-12 - Smith and Wesson Silver .38 Special Revolver; C-15 -
Discharged Bullet; C-21 - Laboratory Report L09-04372-2; and C-22 Laboratory Report
L09-04372-3.
The ill-advised decisions of Defendant Mann and his co-conspirators to flee the Glover
home via a skylight in an effort to evade rapidly responding police and then scurry about the
collective rooftop of the row homes' block for several hours as a law enforcement helicopter
hovered overhead and SWAT teams were quickly deployed about the immediate neighborhood
securing the area's perimeter afforded trial counsel only the most modest of defense options.
N.T. 12/16/09, pp. 136-38, 144-45, 153, 260-61, 265-66, 270-72, 286-87, 289-91. Although not
conceding the Defendant's guilt to any of the prosecuted offenses, it is clear from the instant
record that trial counsel in the face of the Commonwealth's overwhelming evidence recounted
above made the understandable tactical decision to focus his efforts so as to defeat the most
significant charge prosecuted against the Defendant, Criminal Attempt Homicide80 (Information
80
18 Pa.C.S. § 901(2501).
68
A) and by extension, the Aggravated Assault'" allegation (Information G (Count I)). N.T.
12/17/09, pp. 159-82.
Prior to seeking the now disputed stipulation, trial counsel had elicited from the
attempted homicide victim (Ryan Glover) that his gun wielding assailant was literally standing
next to the driver's side door of the van and fairly much in the driver's side window. N.T.
12/16/09, pp. 186-88. Per this immediate vantage point, the Defendant's trial attorney
additionally solicited from the attempted homicide victim that the brandished firearm was a "big
black gun." N.T. 12/16/09, pp. 183-84. Trial counsel relatedly had the attempted homicide
victim confirm that this same description of a "big black gun" was also detailed in his statement
to police. N.T. 12/16/09, pp. 182-83. From the discovery process, Defendant Mann's attorney
was well aware of the Commonwealth's ballistic evidence showed the handgun firing the shot
into the attempted homicide victim's van to be the silver, Smith and Wesson .38 Special revolver
and not one of the other "big black guns" police recovered. N.T. 12/17/09, pp. 108-13, 123-24.
See also Commonwealth Exhibits C-12 - Smith and Wesson Silver .38 Special Revolver; C-15 -
Discharged Bullet; C-21 - Laboratory Report L09-04372-2; and C-22 Laboratory Report
L09-04372-3. Also, trial counsel via discovery was equally well aware that the prosecution's
DNA evidence related to the five (5) recovered firearms did not "match" the Defendant, inter
alia, but rather found that the genetic material recovered from the black, Colt 1991 Model .45
caliber handgun was "matched" to co-defendant Mason. N.T. 12/17/09, pp. 73-81, 90-92. See
also Commonwealth Exhibits C-13 - Colt 1991 Model Black .45 Caliber Handgun; and C-20 -
Laboratory Report L09-04372-4. Knowing also from discovery that the silver, Smith and
Wesson .38 Special Revolver (Commonwealth Exhibit C-12) and the black, Colt 1991 Model .45
81
18 Pa.C.S. § 2702.
69
Caliber Handgun (Commonwealth Exhibit C-13) were linked together as stolen from the same
home, trial counsel obviously sought the now challenged stipulation endeavoring to use the
prosecution's DNA evidence indisputably tying co-defendant Mason to the "big black gun"
(Commonwealth Exhibit C-13 - Colt 1991 Model Black .45 Caliber Handgun) the attempted
homicide victim already so testified as an obvious means of also linking this co-defendant to the
silver, .38 Smith and Wesson Special revolver (Commonwealth Exhibit C-12) ballistically
proven to have fired the shot at Mr. Glover. With this foundation of co-defendant Mason being
unquestionably tied to the "big black gun" (Commonwealth Exhibit C-13 - Colt 1991 Model
Black .45 Caliber Handgun) via DNA, the silver revolver which was ballistically shown to be the
handgun fired at the attempted homicide victim as well tied to co-defendant Mason through the
disputed stipulation, trial counsel then not surprisingly, inter alia, argued to the jury it was
co-defendant Mason and not Defendant Mann who accosted Ryan Glover. N.T. 12/17/09, pp.
162, 165-66, 170, 172-73, 175, 179. The Defendant's trial lawyer further bolstered this line of
argument by presenting evidence material to certain measurements taken from the victim's van
regarding the bullet hole in combination with Defendant Mann's physical stature also suggesting
Mr. Glover's assailant was a taller individual, co-defendant Mason. N.T. 12/17/09, pp. 143-46,
165-66, 172-73, 179. Defendant Mann was acquitted of Criminal Attempt to commit Homicide82
(Information A), although found guilty of Aggravated Assault83 (Information G (Count I)).
Based upon the foregoing, the Defendant has far from established that the challenged
stipulation his trial attorney secured was anything other than a reasoned exercise of the broad
discretion any defense counsel is afforded to determine trial strategies and tactics.
Commonwealth v. Thomas supra 560 Pa. at 255-57, 744 A.2d at 716-17. Although an evaluation
82
18 Pa.C.S. § 901(2501).
83
18 Pa.C.S. § 2702.
70
of a trial attorney's discretionary tactical decision-making authority is not undertaken with the
benefit of hindsight, Commonwealth v. Speight supra 544 Pa. at 461, 677 A.2d at 322, and not
controlled by a strategic course of actions' results, Commonwealth v. Mickens supra 409
Pa.Super. at 277, 597 A.2d at 1202, the tactical election he now attacks his trial attorney for
pursuing was an obvious intricate part of the defense to the Criminal Attempt to commit
Homicide84 allegation, the most serious charged prosecuted, and a crime for which Defendant
Mann was acquitted.
"A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can
be concluded that an alternative not chosen offered a potential for success substantially greater
than the course actually pursued." Commonwealth v. Smith, 609 Pa. 605, 631-32, 17 A.3d 873,
888 (201 l)(Emphasis added). The trial record reveals at best an exceedingly modest number of
viable defense avenues to pursue, if any. N.T. 12/16/09, pp. 136-38, 144-45, 153, 260-61, 265-
66, 270-72, 286-87, 289-91. Certainly, it cannot be concluded on the instant record that
foregoing the now attacked stipulation would have been a tactical election enjoying the
" ... potential for success substantially greater than the course actually pursued." Id.Beyond not demonstrating this challenged stipulation was an unreasoned tactical
determination, absent any basis designed to further his interests, Defendant Mann on the instant
record per that recounted above has certainly not shown that but for this strategic decision of his
lawyer, the trial's outcome would have been otherwise. See Commonwealth v. Thomas supra
560 Pa. at 255-57, 744 A.2d at 716-17; Commonwealth v. Speight supra 544 Pa. at 461, 677
A.2d at 322; Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975; and
Commonwealth v. Mickens supra 409 Pa.Super. at 277, 597 A.2d at 1202. With the exception of
84
18 Pa.C.S. § 901(2501).
71
the criminal attempt85 charge for which he was acquitted, the Commonwealth's evidence largely
flowing from the Defendant's reckless flight and ill-advised decision to hold a small army of law
enforcement personnel at bay overwhelmingly established his guilt as to the balance of the
prosecuted crimes. See Commonwealth v. Pierce supra 515 Pa. at 162, 527 A.2d at 977;
Commonwealth v. Hutchinson supra 611 Pa. at 306, 25 A.3d 277; and Commonwealth v. Rainey,
503 Pa. 67, 96, 928 A.2d 215, 232 (2007).
XII. Trial Counsel was Ineffective Since He Conceded the Defendant's Guilt by Stipulating to
Inadmissible Evidence.
Defendant Mann by way of this error assignment maintains Attorney Wray was
professionally incompetent on agreeing and counseling him to enter the two (2) written
stipulations offered at trial. See Statement of Matters Complained, No. 25. See also Stipulation
1; N.T. 12/16/09, pp. 307-08; Stipulation 2; and N.T. 12/17/09, pp. 68-71. In support of this
contention, the Defendant offers nothing more than the hyperbolic assertion these stipulations
amounted to a concession of guilt and/or the baseless argument that these agreements allowed
otherwise inadmissible evidence for the jury's consideration to become part of the trial record.
See Defendant's Petition, pp. 5, 11. A review of the challenged stipulations in the context of the
trial record as a whole readily shows this appellate complaint is devoid of merit.
The Pennsylvania Supreme Court has past recognized as detailed below that certain
stipulations may be of such a nature that the trial court must conduct a guilty plea like colloquy:
Not only did appellant stipulate to the testimony that would have
been offered by the complaining witness, thereby giving up the
opportunity to cross-examine the witness for purposes of attacking
his credibility, his memory, or his capacity to observe, but also
appellant offered no defense in his own behalf. Under such
circumstances, the stipulation to the witness's testimony made the
outcome a foregone conclusion ....
85
18 Pa.C.S. § 901(2501).
72
. . . [T]he admission of the stipulation should have been surrounded
by safeguards similar to those attending the entry of a guilty plea .
. . . With this contention we agree.
Commonwealth v. Davis, 457 Pa. 194, 197, 322 A.2d 103, 105 (1974).86
Following the Davis decision, the Superior Court had occasions to apply the Supreme
Court of Pennsylvania's direction to other attacked stipulations defendants as well claimed
necessitated the trial court engage in a guilty plea like colloquy and found that unless a
challenged agreement was shown in fact to be an admission of guilt, such an of record discussion
between a defendant and the trial judge was not required. See Commonwealth v. Overton, 237
Pa.Super. 222, 352 A.2d 105 (1975) and Commonwealth v. Bride!!, 252 Pa.Super. 602, 384 A.2d
942 (1978).
In Overton, the Superior Court salient to current considerations opined that below:
The Davis [sic] decision relates only to a particular situation in
which the stipulation involved is So [sic] damaging that it
Constitutes [sic] an admission of guilt. The Davis [sic] reasoning
is that where the stipulation amounts to an admission of guilt, it is
analogous to a guilty plea and should therefore be surrounded by
guilty safeguards.
Commonwealth v. Overton supra 237 Pa.Super. at 225, 352 A.2d at 106. (Emphasis added.)
Similarly, the Superior Court in Bride!! rejected the defendant's argument the attacked
stipulation deprived him of his right to confrontation finding that the agreed upon testimony of a
secondary witness did not demand the Davis directed guilty plea type colloquy where the
complainant-victim testified and her credibility was so challenged. Commonwealth v. Bride!!
supra 252 Pa.Super. at 606-07, 384 A.2d at 945. Referencing Davis, the Superior Court
86
Although concluding that the stipulation this defendant entered via counsel was tantamount to a plea of guilty and
a trial court colloquy was thus required, the Supreme Court of Pennsylvania did not grant the requested collateral
relief finding that his lawyer's strategy of an implicit guilty plea was undertaken in an attempt to secure sentencing
leniency and such a tactical election could not be said to be without some reasonable basis to advance the client's
interests. Id. 457 Pa. at 199, 322 A.2d at 106.
73
summarized the applicable standard as follows: "The test, essentially, is whether the stipulation
in question makes 'the outcome ( of the trial) a foregone conclusion.' " Id. 252 Pa.Super. at 606
citing and quoting Commonwealth v. Davis supra 457 Pa. at 197, 322 A.2d at 105.
At bar, individually and/or collectively, these stipulations with which Defendant Mann
takes issue cannot reasonably or otherwise be seen as a concession of his guilt. The first
agreement is a simple stipulation to a proper chain of custody material to the Commonwealth's
various trial exhibits. See Stipulation 1 and N.T. 12/16/09, pp. 307-08. The second agreement
concerns various items of physical evidence recovered from about the crime scene, swabbings
from the seized firearms, and buccal swabs, inter alia, taken from the three (3) defendants being
forwarded for serology analysis to the Pennsylvania State Police Lima Regional Laboratory.
This stipulation also agrees the resulting and attached report of Forensic Scientist Supervisor,
Michael L. Brincat, was to made part of the trial record and that Supervisor Brincat forwarded
certain items therein listed, including the seized firearms, for subsequent DNA comparative
analysis to the Pennsylvania State Police Bethlehem Laboratory. See Stipulation 2 and N.T.
12/17/09, pp. 68-71. Both stipulations were signed by Defendant Mann, his trial lawyer, and the
Assistant District Attorney. See Stipulations 1 and 2.
As for the Defendant's argument that these stipulations allowed otherwise inadmissible
evidence to be presented to the fact finder and become part of the trial record, the same is
patently frivolous. Undoubtedly, the prosecution, absent Stipulation 1, would have been
permitted to present witnesses and documents relevant to its evidentiary exhibits' custodial
chain. See Stipulation 1. Likewise, the testimony of Supervisor Brincat as reflected by
Stipulation 2 and its attached report would have been allowed, without any such agreement. See
Stipulation 2. There is simply no rule of evidence that would have precluded the Commonwealth
74
from presenting the witnesses and testimony reflected by these stipulations. The subject matter
of the two (2) agreements was unquestionably relevant and admissible, even absent the
stipulations.
Unlike those types of stipulations the Pennsylvania Supreme Court and Superior Court
have found can mandate a court colloquy akin to a guilty plea, these stipulations, individually
and/or collectively, cannot reasonably be seen as a concession of Defendant Mann's guilt. See
Stipulations 1 and 2. See also Commonwealth v. Davis supra 457 Pa. at 197, 322 A.2d at 105;
Commonwealth v. Overton supra 237 Pa.Super. at 225, 352 A.2d at 106; and Commonwealth v.
Bridell supra 252 Pa.Super. at 606 quoting Commonwealth v. Davis supra 457 Pa. at 197, 322
A.2d at 105.
Stemming from these agreements, the evidence directly incriminating the Defendant was
limited to his being "matched" via DNA to a spot of blood recovered from the row homes' roofs.
N.T. 12/17/09, pp. 12-14, 84-85. See also Commonwealth Exhibit C-20 - Laboratory Report
L09-04372-4 - Conclusion No. 7. Given that Defendant Mann and his co-defendant Clark
scurried about the roofs of the residences along the 200 block of Wingate Road for a number of
hours as a police helicopter hovered overhead and the block was surrounded by police SWAT
personnel only to finally surrender by climbing down a fire truck ladder into the custody of
waiting law enforcement, even this incriminating evidence was clearly redundant. N.T.
12/16/09, pp. 268-94. The complainant-victims at bar, Ryan Glover and Kim Weeks, were
presented as prosecution witnesses, cross-examined, and their credibility vigorously attacked.
N.T. 12/16/09, pp. 155-258. See also Commonwealth v. Bridell supra 252 Pa.Super. at 606, 384
A.2d at 944-45. ("Significant here is the fact that appellant did not relinquish the opportunity to
75
cross-examine the complainant for purposes of attacking her credibility; that alone would serve
to distinguish this case from Davis [sic].")
Despite Defendant Mann's hyperbole that these stipulations "conceded Defendant's
guilt ... ," the record at bar summarily reveals to the contrary. No fair reading of these
agreements in the context of the trial record can show that the challenged stipulations made
" . . . 'the outcome ( of the trial) a foregone conclusion.' " Commonwealth v. Bridell supra 252
Pa.Super. at 606 citing and quoting Commonwealth v. Davis supra 457 Pa. at 197, 322 A.2d at
105. Accordingly, this court was not required to engage the Defendant in a guilty plea type
colloquy and trial counsel equally cannot be found ineffective for not assuring the same. Id. See
also Commonwealth v. Sneed supra 616 Pa. at 33, 45 A.3d at 1115 and Commonwealth v.
Hutchinson supra 521 Pa. at 488, 556 A.2d at 372.
Regarding Attorney Wray entering these stipulations and relatedly counseling Defendant
Mann as well to accept the agreements, the Defendant has woefully failed to demonstrate that
even one (1) prong of the requisite three (3) part Pierce ineffectiveness standard has been
established. Commonwealth v. Robinson supra 583 Pa. at 369, 877 A.2d at 439. See also
Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v. Washington
supra 466 U.S. at 687, 104 S.Ct. at 2064.
As discussed above, this appellate complaint is patently meritless. Further, the case
record is empty of any basis to conclude that even without these agreements the prosecution
would have just called those witnesses whose testimony was subject to the stipulations.
Moreover, Defendant Mann does not assert a single reason to suspect that the Commonwealth
was otherwise incapable of producing these witnesses and/or their testimony, absent the
stipulations. See Defendant's Petition, pp. 5, 11. Relatedly, the Defendant has not shown he
76
suffered necessary prejudice in that except for this challenged action of his trial lawyer of
entering these stipulations, the trial outcome would have been different. Commonwealth v.
March supra 528 Pa. at 414, 598 A.2d at 962 and Commonwealth v. Buehl supra 510 Pa. at 378,
508 A.2d at 1174. Finally, Attorney Wray in deciding as a matter of trial tactics to enter into
these now attacked agreements assured that certain evidence favorable to the defense would be
presented and thus, furthered Defendant Mann's interests. In total, these stipulations provided
evidence that while the co-defendants were "matched" via DNA to two (2) of the five (5) seized
firearms, including a big black handgun victim Glover testified fired at him, the Defendant's
DNA was not "matched" by the prosecution's expert to any of the recovered firearms, including
the silver, Smith & Wesson .38 Special revolver ballistically shown to have fired the shot just
missing Mr. Glover. N.T. 12/16/09, pp. 183-84, 209, 221. N.T. 12/17/09, pp. 83-84, 86-87,
90-91, 114-127.87 This inherent discrepancy between the testimony of the prosecution's victim,
Mr. Glover, and the results of its investigative, forensic testing was then understandably utilized
in his summation by trial counsel to attack the Commonwealth's case. N.T. 12/17/09, pp. 162,
165-66, 170, 172-73, 175, 179. Attorney Wray entering these stipulations and counseling
Defendant Mann to as well so agree was clearly a proper exercise of the trial lawyer's broad
discretionary tactical decision making authority. Commonwealth v. Thomas supra 560 Pa. at
255-57, 744 A.2d at 716-17.
The Defendant having failed to adequately establish even one (1) of the requisite three (3)
Pierce prongs, Attorney Wray agreeing to these stipulations cannot be found as an instance of
incompetent stewardship. Commonwealth v. Robinson supra 583 Pa. at 369, 877 A.2d at 439.
87
See Commonwealth Exhibits C-10 - Smith and Wesson .44 Magnum Revolver; C-11 - .40 Caliber Glock 23
Firearm; C-12 - Smith and Wesson Silver .38 Special Revolver; C-13 - Colt 1991 Model Black .45 Caliber
Handgun; C-14 - Sites Spectre-He Firearm; C-15 - Discharged Bullet; C-21 - Laboratory Report L09-04372-2; and
C-22 Laboratory Report L09-04372-3.
77
See also Commonwealth v. Pierce supra 515 Pa. at 158, 527 A.2d at 975 citing Strickland v.
Washington supra 466 U.S. at 687, 104 S.Ct. at 2064.
Although the Defendant has decried these stipulations as a concession of guilt, his claim
is readily belied by the case record and shown to be nothing more than a gross exaggeration.
The combined result of these agreements was to produce cumulative evidence that the Defendant
held police at bay for several hours before surrendering as well as evidence favorable to the
defense as the Commonwealth's forensic testing did not "match" via DNA Defendant Mann to
any of the recovered firearms, albeit the big black gun victim Glover testified was used to shoot
at him or the silver, Smith & Wesson .38 Special revolver ballistically shown to be the handgun
that fired such a shot. Being far removed from any acknowledgement of guilt, these agreements
did not require this court conduct a guilty plea like colloquy of the Defendant. Commonwealth v.
Bridell supra 252 Pa.Super. at 606 citing and quoting Commonwealth v. Davis supra 457 Pa. at
197, 322 A.2d at 105.
The subject matter of these agreements was unquestionably relevant and admissible
evidence. There is no reason to believe that even without the stipulations the prosecution would
not have simply called those witnesses and through their testimony presented the very same
evidence. Being meritless, causing Defendant Mann no prejudice, and otherwise being a
reasoned exercise of his trial lawyer's broad tactical decision making authority, any collateral
attack on Attorney Wray regarding these stipulations is failing. This assignment of error is
patently without merit.
78
XIII. The PCRA Court Erred When it Failed to Address Defendant's Cumulative Error Claim.
Defendant Mann maintains by way of this appellate complaint that this court was
mistaken in its failure to previously address his cumulative error claim as presented via his
collateral petition. See Statement of Matters Complained, No. 6.
The Defendant originally averred in his collateral petition that " ... petitioner respectfully
request [sic] for this court to consider that in the event the issues set forth in this petition for post
conviction collateral relief does not substantiate due prejudice individually, that this court view
the cumulative prejudice to determine relief. See; Com. v. Johnson, 966 A.2d 523 (2009) citing
Com v. Perry, 644 A.2d 705 (1994) [sic]." See Defendant's Petition, p. 21. Hence, Defendant
Mann has properly preserved this collateral claim for review on appeal, unlike many of his other
error assignments.88 A review of the salient record shows this error assignment to be meritless.
"This [Supreme] Court has held that no number of failed ineffectiveness claims may
collectively warrant relief if they fail to do so individually." Commonwealth v. Elliott, 622 Pa.
236, 294, 80 A.3d 415, 450 (2013) citing Commonwealth v. Busanet, 618 Pa. at 67-68, 54 A.3d
35, 75, (Pa. 2012). " ... [W]here ineffectiveness claims are rejected for lack of arguable merit,
there is no basis for an accumulation claims." Commonwealth v. Busanet supra 618 Pa. at 67-68,
54 A.3d at 75 citing Commonwealth v. Sattazahn, 597 Pa. 648, 699-700, 952 A.2d 640, 671
(2008). Moreover, when such a cumulative claim was further reviewed in Commonwealth v.
Hutchinson, the Pennsylvania Supreme Court found:
'[W]here a claimant has failed to prove prejudice as the result of
any individual errors, he cannot prevail on a cumulative effect
claim unless he demonstrates how the particular cumulation
requires a different analysis.' Commonwealth v. Wright, 599 Pa.
270, 961 A.2d 119, 158 (2008); see also Commonwealth v. Small,
602 Pa. 425, [475-76] 980 A.2d 549, 579 (2009) (concluding that a
88
See Sections I and II.
79
broad and vague claim of the prejudicial effect of cumulative
errors did not entitle the appellant to relief). Although cumulative
prejudice from individual claims may be properly assessed in the
aggregate when the individual claims have failed due to lack of
prejudice, nothing in our precedent relieves an appellant who
claims cumulative prejudice from setting forth a specific, reasoned,
and legally and factually supported argument for the claim.
Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009)
(citing Commonwealth v. Perry, 537 Pa. 385, 644 A.2d 705, 709
(1994) for the principle that a new trial may be awarded due to
cumulative prejudice accrued through multiple instances of trial
counsel's ineffective representation); Commonwealth v. Sattazahn,
597 Pa. 648, 952 A.2d 640, 671 (2008). A bald averment of
cumulative prejudice does not constitute a claim.
Commonwealth v. Hutchinson supra 611 Pa. at 318-19, 25 A.3d 277.
Foremost, a review of Defendant Mann's cumulative error claim clearly indicates that he
has failed to proffer a "specific, reasoned, and legally and factually supported argument" and is
not thus entitled to collateral relief on appeal. Id quoting Commonwealth v. Johnson supra 600
Pa. 329, 966 A.2d at 532. The Defendant's error assignment is only one (1) generalized
assertion of the cumulative error claim, while the Defendant's collateral petition's initial
allegation of the cumulative error claim consisted of just a single, two (2) to three (3) sentence
paragraph of legal conclusions and related case citations. See Statement of Matters Complained,
No. 6. See also Defendant's Petition, p. 21. Even when viewed in combination, Defendant
Mann's PCRA petition and appellate complaint statement salient to his accumulated prejudice
argument cannot be seen as anything other than a vague and broadly stated conclusory
contention of law that simply does not support collateral remedy. Id. citing Commonwealth v.
Small supra 602 Pa. at 475-76, 980 A.2d at 579. See also Commonwealth v. Bracey supra 568
Pa. at 273, Fn. 4, 795 A.2d at 940, Fn. 4 (" ... [ A]n undeveloped argument, which fails to
meaningfully discuss and apply the standard governing review of ineffectiveness claims, simply
does not satisfy Appellant's burden of establishing that he is entitled to any relief.")
80
Although the shared failure of individual ineffectiveness challenges based on a lack of
prejudice can warrant a cumulative error review, Commonwealth v. Elliot supra 622 Pa. at 294,
80 A.3d at 450, Defendant Mann's numerous attacks on his trial, direct appeal, and collateral
lawyers' stewardship are largely failing due to their lack of merit, being past litigated, as a
reasoned strategic election well within a defense counsel's broad discretionary decision making,
and/or a combination of such considerations. See Sections IV, VIII, IX, X, XI, XII. Just because
the Defendant is additionally unable to establish that his attorney's complained about acts and/or
omissions occasioned him to suffer the prejudice requisite to PCRA relief does not justify further
review of Defendant Mann's otherwise unarticulated and generalized accumulation claim. See
Id.; Commonwealth v. Busanet supra 618 Pa. at 67-68, 54 A.3d at 75 citing Sattazahn supra 597
Pa. at 699-700, 952 A.2d at 671; and Commonwealth v. Hutchinson supra 611 Pa. at 318-19, 25
A.3d 277 quoting Commonwealth v. Johnson supra 600 Pa. 329, 966 A.2d at 532. The
Defendant has failed to adequately demonstrate " ' how [his] particular cumulation [ claimJ
requires a different analysis.'" Commonwealth v. Hutchinson supra 611 Pa. at 318-19, 25 A.3d
at 277, quoting Commonwealth v. Wright supra 599 Pa. at 336, 961 A.2d at 158. See also
Defendant's Petition, p. 21. Resultantly, this assignment of error is meritless. See Statement of
Matters Complained, No. 6.
XIV. The PCRA Court Erred When it Failed to Grant Defendant an Evidentiary Hearing,
Since the Errors Averred Would Have Changed the Outcome.
Per this error assignment, the Defendant maintains that the court erroneously dismissed
his PCRA petition, absent an evidentiary hearing, " . . . since the errors averred would have
changed the outcome." See Statement of Matters Complained, No. 3. This court to the contrary
determined that no reasoned purpose would be served by any further proceedings as there were
no genuine issues of material fact and Defendant Mann was resultantly not entitled to a hearing
81
prior to the court dismissing the his collateral petition. See Order dated December 24, 2014.
Moreover, this extensive review of the Defendant's collateral petition and thirty-six (36) error
assignments on appeal demonstrates that the dismissal of his collateral petition, without a
hearing, was not misguided.
"The right to an evidentiary hearing on a post-conviction petition is not absolute. A
PCRA court may decline to hold a hearing if the petitioner's claim is patently frivolous and
without a trace of support in either the record or from other evidence." Commonwealth v. Payne,
794 A.2d 902, 906 (Pa.Super. 2002) citing Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super. 2001). "The controlling factor in determining whether a petition may be dismissed
without a hearing is the status of the substantive assertions in the petition." Id. at 906 quoting
Commonwealth v. Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052 (1987).
Pennsylvania Rule of Criminal Procedure 907(1) in salient part states:
If the judge is satisfied from this review that there are no genuine
issues concerning any material fact and that the defendant is not
entitled to post-conviction collateral relief, and no purpose would
be served by any further proceedings, the judge shall give notice to
the parties of the intention to dismiss the petition and shall state in
the notice the reasons for the dismissal . . . .
Pa.R.Crim.P. Rule 907(1).
"A reviewing court on appeal must examine each of the issues raised ... in light of the
record to determine whether the PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary hearing." Commonwealth v.
DuPont, 860 A.2d 525, 530 (Pa.Super. 2004) quoting Commonwealth v. Jordan supra 772 A.2d
at 1014. See also Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008).
The court entered a dismissal notice and order granting collateral counsel's application to
withdraw after a review of the Defendant's appointed collateral counsel's "No Merit Letter" and
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its independent examination of the salient case record. See Dismissal Notice and Order dated
December 2, 2014. See also "No Merit Letter." This court thus determined that the Defendant
Mann's petition raised no genuine issues of material fact, his entitlement to collateral relief was
not sufficiently demonstrated, and that no reasoned purpose would be served by further
proceedings. See Dismissal Notice and Order dated December 2, 2014. See also Commonwealth
v. DuPont supra 860 A.2d at 530 quoting Commonwealth v. Jordan supra 772 A.2d at 1014.
The Defendant's appellate complaints relating to the dismissal of his collateral petition and
averments pertaining to his trial, direct appeal, and collateral counsel's professional
incompetence as detailed above reveals that such errors were meritless.
The Superior Court has held that appellate review of a PCRA's dismissal is conducted:
[I]n the light most favorable to the prevailing party at the PCRA
level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.
2010). This review is limited to the findings of the PCRA court
and the evidence of record. Id. We will not disturb a PCRA
court's ruling if it is supported by evidence of record and is free of
legal error. Id. This Court may affirm a PCRA court's decision on
any grounds if the record supports it. Id. We grant great deference
to the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. Commonwealth
v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford
no such deference to its legal conclusions. Commonwealth v.
Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v.
Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). Further, where
the petitioner raises questions of law, our standard of review is de
nova and our scope of review is plenary. Commonwealth v.
Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010).
Commonwealth v. Rykard supra 55 A.3d at 1183 quoting Commonwealth v. Ford supra 44 A.3d
at 1194.
Salient to Defendant Mann's contentions that this court erred in its dismissal of the
Defendant's PCRA petition, this court in light of the foregoing concluded that no reasoned
purpose would be served by any further proceedings as there were no genuine issues of material
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fact, the instant collateral claims were meritless, previously litigated, a reasoned exercise of
defense counsel's discretionary, tactical decision making authority and/or absent the
demonstration of prejudice requisite to collateral relief. Resultantly, the Defendant was not
entitled to Post Conviction Relief Act remedy. These findings of this court are amply supported
by the instant case record, and it committed no related legal error. See Commonwealth v. Rykard
supra 55 A.3d at 1183 quoting Commonwealth v. Ford supra 44 A.3d at 1194.
For all of these reasons, this court's dismissal, absent a hearing, of Defendant Mann's
collateral filing should be affirmed.
BY THE COURT:
J.
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