Com. v. Howard, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
MICHAEL L. HOWARD, :
:
Appellant : No. 2569 EDA 2015
Appeal from the PCRA Order August 7, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002767-2010
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED MARCH 28, 2017
Appellant, Michael L. Howard, appeals from the August 7, 2015 Order
entered in the Philadelphia County Court of Common Pleas denying his first
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm on the basis of the PCRA court’s July 8, 2016
Opinion.
This Court previously set forth the underlying facts and we need not
repeat them in detail. See Commonwealth v. Howard, 64 A.3d 1082,
1084-86 (Pa. Super. 2013). In summary, Appellant’s charges arose out of a
police investigation of the sale of illegal drugs from a residence at 5820 N.
12th Street in Philadelphia. On August 9, 2011, following a stipulated bench
trial, the trial court convicted Appellant of Possession of a Controlled
Substance With Intent to Deliver (“PWID”) and related offenses. On
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September 23, 2011, the trial court sentenced Appellant to an aggregate
term of 15 to 30 years’ imprisonment.
This Court affirmed Appellant’s Judgment of Sentence on March 19,
2013. Commonwealth v. Howard, 64 A.3d 1082 (Pa. Super. 2013). On
August 28, 2013, our Supreme Court denied allowance of appeal.
Commonwealth v. Howard, 74 A.3d 118 (Pa. 2013).
On November 4, 2013, Appellant filed a pro se PCRA Petition, later
amended by appointed counsel, claiming that newly discovered evidence of
police misconduct entitled him to a new trial. Amended PCRA Petition,
9/29/14, at 2. Specifically, Appellant alleged facts about Officer John
Speiser, the affiant on the search warrant and one of the officers involved in
executing the search warrant, including, inter alia, that he was “indicted by
the federal government on July 30, 2014 and charged with robbery,
falsification of records, RICO and related crimes.” Id. Appellant avers that
Officer Speiser, “played a significant role in [this] case[,]” and that Appellant
should be granted a new trial because Officer Speiser’s testimony is tainted.
Appellant’s Brief at 11.
After providing notice to Appellant pursuant to Pa.R.Crim.P. 907, the
PCRA court dismissed Appellant’s Petition without a hearing on August 7,
2015.
Appellant filed a timely pro se Notice of Appeal. On February 12,
2016, the PCRA court conducted a hearing pursuant to Commonwealth v.
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Grazier, 713 A.2d 81 (Pa. 1998), permitted Appellant to represent himself
pro se, and removed Appellant’s court-appointed attorney. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.1
Appellant presents four issues for our review:
I. Whether PCRA court erred in the dismissal of Appellant’s PCRA
Petition, depriving Appellant [sic] due process of the law, equal
protection, fundamental fairness, where, in view of the facts and
circumstances within Appellant’s case, was the court arbitrary
when it failed to treat Appellant’s case as to case(s) similarly-
situated where relief was proportionally allocated?
II. Whether PCRA court erred in depriving Appellant [of the]
right to a full and fair PCRA proceeding, when the court failed to
provide an adequate opinion/reason(s) for dismissal, and for
failing to address all of the claims raised in Appellant’s pro se
PCRA Petition?
III. Whether PCRA counsel inaction amounted to ineffective
[assistance] when he failed to file a proper/amended PCRA
Petition, and where PCRA counsel performance during PCRA
proceedings was deficient?
IV. Whether PCRA counsel was ineffective when conflict of
int[e]rest rose allowing co-representation with counsel who
Appellant petitioned ineffective (layered claim) in Appellant’s pro
se PCRA Petition?
Appellant’s Brief at 3 (capitalization omitted).
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
1
On February 6, 2017, Appellant filed an Application for Relief urging this
Court to decide his case on the merits and sanction the Commonwealth
because the Commonwealth failed to file a timely brief. Appellant’s
Application is hereby denied. See Pa.R.A.P. 2188 (the consequence of an
appellee’s failure to file a timely brief is denial of participation in oral
argument unless the court directs otherwise).
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free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.
Super. 2012).
To be eligible for relief pursuant to the PCRA, Appellant must establish,
inter alia, that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant
must also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An allegation of
error “is waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal[,] or in a prior state
postconviction proceeding.” 42 Pa.C.S. § 9544(b).
There is no right to a PCRA hearing; a hearing is unnecessary where
the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
In his first claim, Appellant avers that the PCRA court erred in
dismissing his claim regarding Officer Speiser’s tainted testimony because
the PCRA court had purportedly granted relief in similar cases. Appellant’s
Brief at 11-18. Appellant argues that failing to treat “similarly-situated
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litigants in a [consistent] manner” constitutes a denial of equal protection.
Id. at 18.
The PCRA provides relief for a petitioner who demonstrates his
conviction or sentence resulted from “[t]he unavailability at the time of trial
of exculpatory evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.
§ 9543(a)(2)(vi). To establish a claim of newly discovered evidence, a
petitioner must prove that: (1) the evidence has been discovered after trial
and it could not have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being used solely
to impeach credibility; and (4) it would likely compel a different verdict.
Commonwealth v. Sepulveda, 144 A.3d 1270, 1276 n.14 (Pa. 2016).
Newly discovered evidence must be producible and admissible in order to
entitle a petitioner to relief. Commonwealth v. Castro, 93 A.3d 818, 825
(Pa. 2014).
It is axiomatic that “[a]llegations are not evidence.” Commonwealth
v. Delbridge, 859 A.2d 1254, 1258 (Pa. 2004) (plurality). “One cannot
glean from [] bald allegations what evidence of misconduct appellee
intended to produce.” Castro, supra at 825.
Based on its review of the record, the PCRA court determined that
Appellant failed to establish that Officer Speiser played a critical role in his
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arrest and prosecution. PCRA Court Opinion, 7/8/16, at 3. The PCRA court
explained its reasoning as follows:
According to the police paperwork, which was also included in
[A]ppellant’s objection to the Rule 907 Notice, Police Officer
Deirdre Still and Police Officer Simpson set up the surveillance
and made observations at 5820 [N.] 12th [S]treet in response to
complaints about the sale of illegal drugs. Officer Still observed
approximately four transactions involving [A]ppellant and other
parties over the course of the surveillance and radioed that
information to back-up officers. In addition, the paperwork
indicates that [A]ppellant was placed under arrest by back-up
officer, Officer Kensley, who also performed the search incident
to arrest[,] which netted, among other things, crack cocaine.
Officer Still also testified at trial. None of these officers were
among those named in the federal indictment. Accordingly,
Speiser did not play a critical role in the prosecution of
[A]ppellant’s case and the [c]ourt did not commit error by failing
to grant [A]ppellant relief on this claim.
Id.
Our review of the certified record confirms the PCRA court’s findings.
Officer Speiser testified at Appellant’s preliminary hearing, stating that he
prepared the search warrant and later led the team that executed the search
warrant at 5820 N. 12th Street. N.T., 3/3/10, at 14-18. At Appellant’s
stipulated bench trial following the denial of his Motion to Suppress, the
Commonwealth proffered Officer Speiser’s testimony regarding the
preparation and execution of the search warrant following Officer Still’s
observations of the drug transactions, as well as the evidence Officer Speiser
and his squad recovered from 5820 N. 12th Street. N.T. 8/9/11, at 38-41.
Insofar as Appellant has attached several newspaper articles regarding
the six indicted police officers, including Officer Speiser, the newspaper
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articles do not meet the definition of “evidence” because they are merely the
reporter’s version of facts and are not admissible at trial. Commonwealth
v. Griffin, 137 A.3d 605, 610 (Pa. Super. 2016). As our Supreme Court
held in Castro, “[w]hile newspaper articles can alert a party to the possible
existence of evidence, the party must do more than attach the article as
establishing the evidence that will meet the four-pronged test.” Castro,
supra at 827 (emphasis added).
Further, “[a]n evidentiary hearing ... is not meant to function as a
fishing expedition for any possible evidence that may support some
speculative claim.” Castro, supra at 828. “[T]here must be actual
discovery of actual evidence, not merely the possibility of such evidence.”
Id.
Assuming, arguendo, Officer Speiser’s testimony is “tainted” and
excludable, the remaining untainted evidence that supports the guilty verdict
would be largely unaffected. We agree with the PCRA court’s analysis, and
conclude that Appellant failed to prove that his newly discovered evidence
would likely compel a different verdict.
In his second claim, Appellant avers that the PCRA court failed to
provide an adequate Pa.R.A.P. 1925(a) Opinion because the PCRA court did
not address all of the claims he raised in his pro se PCRA Petition.
Appellant’s Brief at 3, 18-22.
The PCRA court addressed Appellant’s claim as follows:
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Appellant next complains that the [c]ourt failed to provide an
adequate opinion addressing all of the claims raised in his pro
se PCRA [P]etition. Appellant’s assertion is misplaced. The
counseled [P]etition presented to the [c]ourt raised the issue of
police misconduct in the prosecution of [A]ppellant’s case. The
PCRA court is only required to address the issues raised in the
counseled [P]etition, which the [c]ourt did. [See
Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999)]
(“We will not require courts considering PCRA petitions to
struggle through the pro se filings of defendants when qualified
counsel represent those defendants[.]”). Furthermore, in
response to the [c]ourt’s 1925(b) order, appellate counsel
indicated that she could identify no meritorious issue(s) to raise
on appeal and it was her intent to file an Anders brief.
Consequently, the [c]ourt declined to file a formal opinion. See
Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006)
(a 1925(b) statement must specify for the trial court, the issues
the [A]ppellant wishes to raise on appeal). Accordingly, this
complaint lacks merit.
PCRA Court Opinion, 7/8/16, at 4. We agree with the PCRA court’s analysis.
Appellant’s counseled PCRA Petition only raised claims regarding
Officer Speiser and his tainted testimony. Pursell, supra, held that a PCRA
court need not rule on each issue raised in a lengthy pro se filing prior to the
appointment of PCRA counsel. See also Commonwealth v. Markowitz,
32 A.3d 706, 713 n.5 (Pa. Super. 2011) (stating “Amended petitions are
required on first-time PCRA cases, and the PCRA court is only permitted to
address issues raised in a counseled petition.” (citations omitted)).
Accordingly, Appellant’s second claim merits no relief.
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Appellant’s last two issues challenge the effective assistance of PCRA
counsel.2 The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
First, Appellant must meet the “arguable merit” prong. “The threshold
inquiry in ineffectiveness claims is whether the issue/argument/tactic which
counsel has foregone and which forms the basis for the assertion of
ineffectiveness is of arguable merit[.]” Commonwealth v. Pierce, 645
A.2d 189, 194 (Pa. 1994) (quotation and citation omitted). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
2
Appellant baldly asserts the ineffective assistance of trial and direct appeal
counsel, but he failed to raise these issues as separate ineffectiveness claims
in his statement of questions and Appellant failed to develop intelligible
arguments regarding these claims in his Brief. Thus, these claims regarding
trial and direct appeal counsel are waived. Pa.R.A.P. 2116, 2119.
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Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004)
(quotation and citation omitted).
Second, Appellant must meet the “no reasonable basis” prong. We
apply the “reasonable basis” test to determine whether counsel’s chosen
course was designed to effectuate his client’s interests. Pierce, supra at
194-95. “If we conclude that the particular course chosen by counsel had
some reasonable basis, our inquiry ceases and counsel’s assistance is
deemed effective.” Id. at 195 (quotation and citation omitted).
Third, Appellant must meet the “prejudice” prong. “Prejudice is
established when a defendant demonstrates that counsel’s chosen course of
action had an adverse effect on the outcome of the proceedings.”
Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quotation
marks and citation omitted). “The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id.The Honorable Sheila Woods-Skipper, sitting as the PCRA court, has
authored a comprehensive, thorough, and well-reasoned Opinion, citing to
the record and relevant case law in addressing Appellant’s ineffectiveness
claims and concluding that Appellant relied on boilerplate allegations of
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ineffective assistance of counsel and that Appellant’s vague, generalized,
and undeveloped claims are not reviewable. See PCRA Court Opinion,
7/8/16, at 6-7. The record supports the PCRA court’s findings and its Order
is otherwise free of legal error. We affirm on the basis of the PCRA court’s
July 8, 2016 Opinion. Id.The parties are instructed to attach a copy of the PCRA court’s July 8,
2016 Opinion to all future filings.
Order affirmed. Application for Relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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