Com. v. Potts, J. ( 2017 )

J-S09045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES JERMAINE POTTS, JR.,
Appellant No. 2453 EDA 2016
Appeal from the PCRA Order July 22, 2016
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0001123-2012
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 26, 2017
Appellant, James Jermaine Potts, Jr., appeals pro se from the order of
July 22, 2016, which dismissed, without a hearing, his first petition brought
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
For the reasons discussed below, we affirm the dismissal of the PCRA
petition.
We take the underlying facts and procedural history in this matter
from this Court’s March 3, 2015 memorandum on direct appeal and our
independent review of the certified record.
At approximately 2:00 a.m. on January 27, 2012, Towayne
Uqdah, his cousin Andre Tutt and Kevin Morgan were walking
toward Morgan’s car, which was parked on a street in West
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*
Retired Senior Judge assigned to the Superior Court.
J-S09045-17
Chester. Two men ran up to them, yelled at them not to move,
and then started shooting. Tutt ran away and was shot once.
Uqdah was shot nine times, and died from his injuries.
Police arrested [Appellant] and Greg Arrington for the
shootings. Arrington subsequently pled guilty to the murder of
Uqdah.
[Appellant’s] trial began on September 30, 2013, and
ended on October 3, 2013, when the jury found him guilty of
[murder in the first degree, two counts of attempt to commit
criminal homicide, two counts of aggravated assault, possessing
an instrument of crime, five counts of recklessly endangering
another person, and criminal conspiracy.1] On November 26,
2013, the [trial] court sentenced [Appellant] to [not less than]
life imprisonment plus [not less than twenty-seven nor more
than fifty-four] years’ incarceration.
(Commonwealth v. Potts, 2015 WL 7458798, at *1 (Pa. Super. 2015)
(unpublished memorandum)).
On March 3, 2015, this Court affirmed the judgment of sentence.
(See id.). Appellant did not seek leave to appeal to the Pennsylvania
Supreme Court.
On May 1, 2015, Appellant, acting pro se, filed a petition for
transcripts and other court documents. The trial court denied the petition on
July 29, 2015. On March 4, 2016, Appellant, acting pro se, filed the instant,
timely PCRA petition. On March 7, 2016, the PCRA court appointed counsel.
On April 11, 2016, Appellant, despite being represented by counsel, filed a
pro se petition for a writ of habeas corpus. On April 29, 2016, the PCRA
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1
18 Pa.C.S.A. §§ 2502(a), 901, 2702(a), 907, 2705, and 903, respectively.
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court directed that the petition for a writ of habeas corpus be treated as a
PCRA petition and forwarded it to counsel.
On May 18, 2016, PCRA counsel filed a motion to withdraw and
submitted a Turner/Finley letter addressing issued raised in both PCRA
petitions.2 On June 14, 2016, the PCRA court issued notice of its intent to
dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure
907(1). On June 16, 2016, Appellant, despite being represented by counsel,
filed a second petition for transcripts and other court documents and
records. On July 1, 2016, Appellant, acting pro se, filed a response to the
Rule 907 notice. On July 21, 2016, the PCRA court granted counsel’s motion
to withdraw. On July 22, 2016, the PCRA court denied Appellant’s petition
for transcripts and denied his PCRA petition. The instant, timely appeal
followed.3
On appeal, Appellant raises the following questions for our review.
I. Did the PCRA court’s denial of the trial record deprive
Appellant of the right to meaningfully challenge PCRA
counsel’s no-merit letter?
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2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
On August 10, 2016, the PCRA court directed Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement. See id. On September 28,
2016, the PCRA court filed an opinion. See Pa.R.A.P. 1925(a).
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II. Did the PCRA court’s denial of the trial record deprive
Appellant of the right to vindicate his Sixth Amendment
right to the effective assistance of trial counsel?
III. Did the PCRA court’s denial of the trial record deny
Appellant the right to proceed pro se during the PCRA
proceedings?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).
We review the denial of a post-conviction petition to determine
whether the record supports the PCRA court’s findings and whether its order
is otherwise free of legal error. See Commonwealth v. Faulk, 21 A.3d
1196, 1199 (Pa. Super. 2011). 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.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also
establish that the issues raised in the PCRA petition have not been
previously litigated or waived. See 42 Pa.C.S.A. § 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.A. § 9544(b). Further,
. . . a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision
dismissing a petition without a hearing for an abuse of
discretion.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
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the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
Initially, we note that all of Appellant’s issues are interrelated, each
claiming that because the PCRA court denied his motion for transcripts he
was unable to prosecute his PCRA petition. Therefore, we will address them
together.
It is well settled that a defendant need not possess transcripts and
other court documents before pursuing post-conviction relief. See
Commonwealth v. Crider, 735 A.2d 730, 733 (Pa. Super. 1999).
Discovery in PCRA proceedings is governed by Pennsylvania Rule of Criminal
Procedure 902(E)(1), which states in pertinent part, “[e]xcept as provided in
paragraph (E)(2),[4] no discovery shall be permitted at any stage of the
proceedings, except upon leave of court after a showing of exceptional
circumstances.” Pa.R.Crim.P. 902(E)(1). Appellant has not met this hurdle.
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4
Relating to death penalty cases. See Pa.R.Crim.P. 902(E)(2).
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In his brief, Appellant vaguely states he is certain that if supplied with
transcripts and the myriad of other documents he requested, 5 he will be able
to “[scour] the record in search of claims warranting reversal of the
judgment.” (Appellant’s Brief, at 10). He notes his belief that collateral
review “entails” a “fishing expedition” wherein he will search for a claim.
(Id.). These bald assertions do not convince us that exceptional
circumstances existed to compel the PCRA court to grant Appellant’s broad-
based discovery motion. See Commonwealth v. Lark, 746 A.2d 585, 590-
91 (Pa. 2000) (affirming denial of discovery request during PCRA
proceedings and stating, “[w]e will not sanction a fishing expedition when
[a]ppellant fails to provide even a minimal basis for his claim.”);
Commonwealth v. Williams, 732 A.2d 1167, 1175 (Pa. 1999) (affirming
denial of discovery request for broad-based discovery in PCRA proceedings
where appellant did not cite to any specific ground supporting request).
Thus, Appellant has not shown that the PCRA court erred in denying his
request for discovery.6
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5
In his petition, Appellant sought all transcripts, including preliminary
hearing and motion hearing transcripts, all motions filed in the case, all trial
court opinions, and all grand jury transcripts. (See Petition for Transcripts,
Other Records, and Documents, 6/16/16, at 2).
6
We note that Appellant does not challenge the denial of his PCRA petition
on any grounds other than the denial of his petition for transcripts. (See
Appellant’s Brief, at 4).
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Accordingly, for the reasons discussed above, we affirm the PCRA
court’s dismissal of Appellant’s PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2017
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