Com. v. Turner, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KHALIL TURNER,
Appellant No. 1029 EDA 2016
Appeal from the PCRA Order of March 11, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001792-2010
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2017
Appellant, Khalil Turner, appeals from the order entered on March 11,
2016, dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The facts of this case, as summarized by this Court on direct appeal,
are as follows:
In February of 2006, while housed in Curran Fromhold
Correctional Facility, Kareen Glass told his cellmate, Eddie
Almodovar, that he arranged for Dominic Thomas, a friend
of Almodovar, to kill a witness in Glass’s pending homicide
case. Almodovar told authorities what Glass stated and
later gave a signed statement to Philadelphia Police Officer
Patrick Boyle; Almodovar also identified Glass in a
photograph.
By May of 2009, Almodovar had been transferred to the
Philadelphia Industrial Correction Center. Appellant and
Ernest Baker, his co-defendant, shared a cell next to
Almodovar. On May 16, 2009, [A]ppellant approached
Almodovar about his involvement in the case against Glass.
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After a brief exchange the two parted ways and Almodovar
requested to spend the day in his cell. However, when
Almodovar exited his cell, [A]ppellant was waiting outside
holding a red and grey knife. Appellant swung at
Almodovar cutting his lip with the knife. The two men
began throwing punches and wrestling; the altercation
lasted approximately five minutes. [Almodovar] testified
that a group of inmates, including Baker, tried to break up
the fight and Almodovar was stabbed in the back with a
weapon similar to an ice pick. This weapon, customarily
seen in prisons, may have been a large screw of about six
to eight inches that is typically removed from a light in the
prison and sharpened down to form a weapon. Almodovar
was unsure as to whether [A]ppellant or Baker used the ice
pick, as there were so many people around at this point.
Corrections Officer James Graham ended the brawl by
spraying [A]ppellant and Baker with pepper spray and
handcuffing the men.
Almodovar was taken for medical treatment where he
received 18 stitches for the injury to his lip. Almodovar
suffered puncture wounds and scratches to his back, chest
and arm. He also endured four lacerations and eight poke
wounds to his back, one wound to his arm, and two wounds
to his chest. Almodovar was then placed in protective
custody.
A search of [A]ppellant’s cell yielded several documents.
The documents referred to an ice pick, a knife/shank, and
“snitches” in code as well as in actuality. No weapons were
recovered during the search.
* * *
On August 9, 2011, the jury found [A]ppellant guilty of
aggravated assault and [possessing an instrument of
crime]. He was found not guilty of attempted murder and
conspiracy. On September 23, 2011, [A]ppellant was
sentenced to 10 to 20 years’ incarceration for aggravated
assault and a consecutive sentence of 2½ to 5 years’ on the
weapons offense.
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Commonwealth v. Turner, 2013 WL 11271519 (Pa. Super. 2013)
(unpublished memorandum) (record citations and footnote omitted). We
affirmed Appellant’s judgment of sentence on April 8, 2013. Id. Our
Supreme Court denied further review. See Commonwealth v. Turner, 75
A.3d 547 (Pa. 2013).
On May 14, 2014, Appellant filed a pro se PCRA petition. Counsel was
appointed and he filed an amended PCRA petition on July 14, 2015. After
giving Appellant notice of its intent to dismiss the PCRA petition under
Pa.R.Crim.P. 907,1 the PCRA court entered an order on March 11, 2016
denying Appellant relief. This timely appeal resulted.2
On appeal, Appellant presents the following issue for our review:
Did the [PCRA] [c]ourt err in failing to hold an evidentiary
hearing to determine substantial issues of material fact
alleged in [] Appellant’s PCRA petition?
Appellant’s Brief at 8.
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1
Appellant filed a pro se response to the PCRA court’s Rule 907 notice.
2
Appellant filed a counseled notice of appeal on March 30, 2016. Attached
to Appellant’s appellate brief is a purported statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). However, the docket does not
reflect that the PCRA court ordered the preparation of a 1925(b) statement
and there is no indication on the docket that one was filed. In its opinion
issued on August 26, 2016, however, the PCRA court addressed each of the
claims as presented in Appellant’s amended, counseled PCRA petition.
Appellant’s current claims relate specifically to issues presented in his
amended PCRA petition.
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While Appellant’s single issue avers he is entitled to an evidentiary
hearing, his complaints relate to three distinct claims of trial counsel
ineffectiveness.
“In PCRA proceedings, an appellate court's scope of review is limited
by the PCRA's parameters; since most PCRA appeals involve mixed
questions of fact and law, the standard of review is whether the PCRA court's
findings are supported by the record and free of legal error.”
Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). “[T]he right to an
evidentiary hearing on a PCRA petition is not absolute.” Commonwealth v.
Barbosa, 819 A.2d 81, 85, (Pa. Super. 2003) (internal citation omitted). “If
the PCRA court can determine from the record that no genuine issues of
material fact exist, then a hearing is not necessary.” Id., citing Pa.R.Crim.P.
907(1).
“To establish trial counsel's ineffectiveness, a petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2) counsel had
no reasonable basis for the course of action or inaction chosen; and (3)
counsel's action or inaction prejudiced the petitioner.” Commonwealth v.
Spotz, 84 A.3d 294, 303 n.3 (Pa. 2014). “Boilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a
petitioner's burden to prove that counsel was ineffective.” Commonwealth
v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).
In his first issue presented, Appellant avers that trial counsel was
ineffective for failing to call Paul Miles, Miguel Deleon, and/or Derrick Spivey,
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purported eyewitnesses to the incident in question who were available to
testify at trial. Appellant’s Brief at 14-15.
We have previously determined:
Where an appellant claims that counsel was ineffective for
failing to call a particular witness, we require proof of that
witness's availability to testify, as well an adequate
assertion that the substance of the purported testimony
would make a difference in the case. With respect to such
claims, our Court has explained that:
the appellant must show: (1) that the witness
existed; (2) that the witness was available; (3) that
counsel was informed of the existence of the witness
or should have known of the witness's existence; (4)
that the witness was prepared to cooperate and
would have testified on appellant's behalf; and (5)
that the absence of the testimony prejudiced
appellant.
Thus, trial counsel will not be found ineffective for failing to
investigate or call a witness unless there is some showing
by the appellant that the witness's testimony would have
been helpful to the defense. A failure to call a witness is not
per se ineffective assistance of counsel for such decision
usually involves matters of trial strategy.
Commonwealth v. Michaud, 70 A.3d 862, 867–868 (Pa. Super. 2013)
(internal quotations, citations, and original brackets omitted). Moreover, we
have held that “[a] defendant who voluntarily waives the right to call
witnesses during a colloquy cannot later claim ineffective assistance and
purport that he was coerced by counsel.” Commonwealth v. Lawson,
762 A.2d 753, 756 (Pa. Super. 2000).
Here, the trial court colloquied Appellant prior to the close of trial and
Appellant stated that he did not intend to call witnesses despite his right to
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do so. N.T., 8/5/2011, at 15-16. Instantly, the PCRA court determined that
Appellant “cannot now claim ineffectiveness for this alleged error.” PCRA
Court Opinion, 8/26/2016, at 6. We agree. Moreover, upon review of the
certified record, attached to Appellant’s amended PCRA petition are
certifications from Appellant’s PCRA counsel. Therein, PCRA counsel certifies
that he “expect[ed]” Paul Miles, Miguel Deleon, and Derrick Spivey to testify
that they were eyewitnesses to the incident, that Appellant was innocent,
and that the witnesses were available for trial. Amended PCRA Petition,
3/5/2015, Attachments. Aside from blanket statements, Appellant fails to
show that these witnesses were available and ready to cooperate and testify
on Appellant’s behalf. In fact, PCRA counsel did not even know Miguel
Deleon’s whereabouts. Id. Appellant also fails to set forth the substance of
the purported eyewitnesses’ testimony other than conclusory certifications
that Appellant was innocent. He has not met his burden of establishing that
these three identified witnesses would have been helpful to the defense.
Finally, upon review of the notes of testimony from trial, we recognize that
the victim and three corrections officers identified Appellant as the victim’s
assailant. Appellant has not demonstrated how the outcome of trial would
have been different with the purported witnesses’ testimony. Hence, his
first claim fails.
Next, Appellant claims that trial counsel was ineffective for advising
him not to testify at trial because “prior [crimen falsi] convictions could be
used against him to impeach his credibility.” Appellant’s Brief at 15. More
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specifically, Appellant contends that the PCRA court’s “opinion states that []
Appellant had been convicted of burglary in 2003” but that “[current
c]ounsel could find no indication of that conviction in the record.” Id. at 15
n.1. Appellant admits that “while he did have arrests in his past that were
considered crimen falsi, there were no convictions.” Id. at 15.
In this case, the PCRA court determined that “trial counsel’s advice
was sound because [Appellant] was convicted of a burglary charge on May
20, 2003.” PCRA Court Opinion, 8/26/2016, at 7. Upon review of the
certified record, while the PCRA court used the term “conviction,” Appellant
was, in fact, “adjudicated delinquent” of burglary on that date. The
Commonwealth, in a motion to dismiss Appellant’s PCRA petition filed on
December 7, 2015, argued that Appellant’s burglary adjudication qualified
under Pa.R.E. 609(d) and would have been admitted for impeachment
purposes had Appellant testified at trial.3 Commonwealth’s Motion to
Dismiss, 12/7/2015, at 7-8. Upon independent review, we confirmed that
Appellant was adjudicated delinquent for burglary on May 20, 2003. See
CP-51-JV-0050152-2003. “In a criminal case only, evidence of the
adjudication of delinquency for an offense under the Juvenile Act […] may be
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3
We note that on November 10, 2016, the Commonwealth filed an
application for an extension of time to file an appellate brief which was
granted by order dated December 7, 2016. To date, the Commonwealth has
not filed one. Appellate advocacy would have been helpful in this matter,
especially on this specific issue. Instead, this Court had to scour the record
to examine the merits of Appellant’s claim.
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used to impeach the credibility of a witness if conviction of the offense would
be admissible to attack the credibility of an adult.” Pa.R.E. 609(d) (internal
citation omitted); see also 42 Pa.C.S.A. § 6354(b)(4) (“The disposition of a
child […] may only be used against him […] in a criminal proceeding, if the
child was adjudicated delinquent for an offense, the evidence of which would
be admissible if committed by an adult.”). The prior adjudication must have
occurred within 10 years of the witness’s testimony. Pa.R.E. 609(b).
“Where the date of [adjudication] or last date of confinement is within ten
years of the trial, evidence of the [adjudication] of a crimen falsi is per se
admissible.” Pa.R.E. 609, comment. Burglary is considered a crimen falsi
offense and is admissible for the purpose of impeachment. See
Commonwealth v. Trippett, 932 A.2d 188, 199–200 (Pa. Super. 2007).
Appellant’s trial in the current matter took place in August 2011,
approximately eight years after his May 2003 adjudication for burglary.
Hence, his prior adjudication was per se admissible had Appellant testified at
trial. Accordingly, there is no merit to Appellant’s claim that trial counsel
rendered ineffective assistance in advising him that his prior adjudication
would have been used to impeach him had he testified at trial.
Finally, Appellant claims that despite his best efforts “to preserve the
shirt worn by the complaining witness” he was unable to procure it and,
therefore, trial counsel was ineffective for failing to request standard jury
instruction 3.21(B) pertaining to the Commonwealth’s failure to produce
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tangible evidence. Id. at 16. As such, Appellant claims there are material
issues of fact to resolve which require an evidentiary hearing. Id. at 17.
On this issue, the PCRA court concluded:
[Appellant] claims that the shirt was in the sole possession
of the Commonwealth. However, he fails to establish that
this was so and offers no substantiated claim as such. The
only evidence he shows is a grievance form requesting the
shirt, but fails to establish that it was in possession of the
Commonwealth. He claims that there were no holes in the
shirt which would have proven that the victim was not
stabbed in the incident. However, [Appellant] stipulated to
the medical records detailing the wounds and lacerations
suffered by the victim. Moreover, there were photos taken
after the assault which provided visual evidence of these
injuries. Additionally, Lieutenant Ellwood Talbot identified
photos of [Appellant] which showed him covered in blood
but without any injury. In light of the testimony and
stipulation, [Appellant] fails to show a substantive claim for
relief. Thus, there was no basis for the instruction.
PCRA Court Opinion, 8/26/2016, at 8.
“[I]t has long been the rule in this Commonwealth that a trial court
should not instruct the jury on legal principles which have no application to
the facts presented at trial.” Commonwealth v. Buterbaugh, 91 A.3d
1247, 1257 (Pa. Super. 2014).
Pennsylvania Suggested Standard Criminal Jury Instruction,
3.21(b)(2), failure to produce document or other tangible evidence at trial,
includes the following language:
If three factors are present, and there is no satisfactory
explanation for a party's failure to produce an item, the jury
is allowed to draw a common-sense inference that the item
would have been evidence unfavorable to that party. The
three necessary factors are:
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First, the item is available to that party and not to
the other;
Second, it appears the item contains or shows
special information material to the issue; and
Third, the item would not be merely cumulative
evidence.
Pa.S.S.C.J.I. 3.21(B).
Here, Appellant has no evidence that the victim’s shirt was ever in the
Commonwealth’s possession. Appellant alleged in letters to prison officials
that he wished to preserve the shirt for trial. However, there is no indication
that prison officials retained the shirt or turned it over to the
Commonwealth. Thus, the first requirement under Pa.S.S.C.J.I. 3.21(B) was
not met. Moreover, Appellant does not challenge the fact that he stipulated
to the victim’s medical records at trial. Those records showed the victim
suffered from puncture wounds and lacerations consistent with a stabbing.
The Commonwealth also entered photographs of the victim’s injuries into the
record at trial. Finally, prison officials obtained documentation from
Appellant’s cell indicating he planned a stabbing. In light of this additional,
unchallenged evidence, Appellant has not demonstrated how he was
prejudiced by trial counsel’s failure to request Pennsylvania Suggested
Standard Criminal Jury Instruction 3.21(b)(2). Hence, Appellant’s last claim
lacks merit and Appellant was not prejudiced.
Finally, we reject Appellant’s suggestion that an evidentiary hearing
was required. “[I]t is well settled that a PCRA court does not need to
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conduct a hearing on all issues related to counsel's ineffectiveness.”
Commonwealth v. Rush, 838 A.2d 651, 659–660 (Pa. 2003) (citations
omitted). We will only reverse a decision not to hold a hearing upon an
abuse of discretion. Id. Again, we stress that when “the PCRA court can
determine from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Barbosa, 819 A.2d at 85. Here, the PCRA court
was able to assess the merits of Appellant’s based solely on the record and
there was no need for an evidentiary hearing. Accordingly, we discern no
abuse of discretion by the PCRA court in declining to hold an unnecessary
proceeding.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
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