Com. v. Vundel, A. ( 2019 )

J-S77039-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTONIO WHITE VUNDEL, :
:
Appellant : No. 1841 EDA 2017
Appeal from the PCRA Order May 3, 2017
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001475-2012
BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 13, 2019
Antonio White Vundel (Appellant) appeals from the May 3, 2017 order
dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546, following an evidentiary hearing. Counsel has filed a
motion to withdraw, as well as an Anders brief.1 We affirm the PCRA
court’s order and grant counsel’s motion to withdraw.
On March 15, 2013, a jury convicted Appellant of possession of an
instrument of crime and first-degree murder in connection with the fatal
1 Counsel filed a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1997). However, a Turner/Finley no-merit
letter is the appropriate filing when counsel seeks to withdraw from
representation on appeal from the denial of PCRA relief. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because an Anders brief
provides greater protection, we may accept an Anders brief in lieu of a
Turner/Finley no-merit letter in a collateral appeal. Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
* Retired Senior Judge appointed to the Superior Court.
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shooting of Appellant’s acquaintance, Melvin Stewart. Prior to trial,
Appellant, through Craig Hosay, Esquire, his privately-retained counsel, filed
a motion to suppress three statements Appellant made to police following
Stewart’s death.
By way of background, we provide the following summary of the trial
court’s factual findings from the suppression hearing. See Commonwealth
v. White, 106 A.3d 159 (Pa. Super. 2014) (unpublished memorandum at
*2-7) (setting forth the trial court’s findings of fact). Stewart was shot and
killed in the early morning hours of November 1, 2011. Later that day, as
part of their investigation into Stewart’s known associates, Upper Darby
Township police detectives went to Appellant’s home to see if he had
information about the shooting. Following an interview in his living room,
Appellant signed a statement memorializing his answers.
After obtaining information from others that Appellant may have been
involved in the shooting, Detective Silberstein served a search warrant at
Appellant’s house on November 5, 2012. Appellant’s mother, Jacqueline
Douglas, who lived in the home, permitted the officers to enter the home.
According to Detective Silberstein, Appellant voluntarily agreed to
accompany the officers to the station to discuss the shooting. Appellant and
Detective Silberstein rode in the backseat of an unmarked non-caged police
car to the station. Appellant was neither handcuffed nor placed under
arrest.
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Once at the station, Detective Silberstein interviewed Appellant in a
conference room. Detective Silberstein provided Appellant with a form
advising him that he was free to leave at any time, which Appellant signed.
Appellant got up several times to use the bathroom without an escort, and
returned on his own accord by knocking on the door to be let back into the
room. Over the next six hours, Appellant provided a written statement
regarding the shooting (First Statement). In the First Statement, Appellant
stated that he was at home when he heard a gunshot, and drove to the
scene and discovered Stewart’s slain body.
After the First Statement was signed, Detective Silberstein was
advised that a witness identified Appellant as the shooter, and he placed
Appellant under arrest. At that point, the officers frisked Appellant,
inventoried his personal items, moved him to the interview room, and
advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436(1966). Without invoking any of his rights, Appellant provided another
statement to police (Second Statement), and this time claimed he was
present when Stewart was shot, but someone named Yin shot Stewart,
handed Appellant the gun afterwards, and then retrieved the gun and
disappeared.
Later in the evening, police advised Appellant of his Miranda rights for
a second time, and told him another witness had identified him as the
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shooter. Subsequently, Appellant confessed to shooting Stewart, and
provided a final statement to police (Third Statement).
Attorney Hosay did not call any witnesses to testify at the suppression
hearing. At the conclusion of the hearing, the trial court denied Appellant’s
motion to suppress, and the case proceeded to trial. On April 19, 2013,
Appellant was sentenced to life in prison without parole followed by a six-
month to five-year sentence of incarceration.
Appellant filed a direct appeal, challenging, inter alia, the denial of his
suppression motion. This Court affirmed Appellant’s judgment of sentence
on August 14, 2014, concluding that based upon the trial court’s
determinations that Appellant had left his house willingly to accompany
police to the station to discuss the shooting, was free to leave at any point,
and voluntarily chose to answer questions, Miranda’s protections were not
applicable because Appellant was not subject to custodial interrogation at
the time he provided his First Statement. See White, supra. On February
19, 2015, our Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. White, 110 A.3d 997 (Pa. 2015)
(unpublished).
On May 4, 2016, Appellant timely filed a counseled PCRA petition,
averring that Attorney Hosay rendered ineffective assistance of counsel by
not calling Appellant and his mother, Jacqueline Douglas, to testify regarding
Appellant’s interactions with police prior to and during the taking of the First
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Statement on November 5, 2011. PCRA Petition, 5/4/2016, at 2. The PCRA
court conducted a hearing on Appellant’s petition on October 28, 2016. At
the hearing, Appellant, Appellant’s mother, and Attorney Hosay testified, and
the Commonwealth presented Detective Silberman as a rebuttal witness.
Following briefing by the parties, the PCRA court entered an order denying
Appellant’s petition.
Appellant pro se filed a timely notice of appeal. Appellant’s PCRA
counsel, Carson Morris, Esquire, filed a motion to withdraw, averring that he
was retained solely to represent Appellant at the hearing and was barred
from representing Appellant due to his new employment. The PCRA court
granted Attorney Morris’s motion. Appellant requested court-appointed
counsel, and in August 2017, J. Anthony Foltz, Esquire, entered his
appearance on Appellant’s behalf. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Subsequently, Attorney Foltz filed an application to withdraw his
appearance before this Court, along with an Anders brief, concluding that
there were no non-frivolous issues to be raised on appeal. Appellant filed a
response pro se, acknowledging that counsel properly raised the issue
Appellant wanted to present, but maintaining that Attorney Foltz failed to
investigate adequately such issue, because if he had, he would have seen
that the record demonstrated that the testimony of Appellant and his mother
was credible and the testimony of Detective Silberman and Attorney Hosay
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was not credible. Response to Counsel’s Petition to Withdraw and Anders
Brief, 9/25/2018, at 1-4.2
Before we may address the potential merit of Appellant’s claim, we
must determine if counsel has complied with the technical requirements of
Turner and Finley.
... Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” … brief
on appeal to this Court, detailing the nature and extent of
counsel’s diligent review of the case, listing the issues which the
petitioner wants to have reviewed, explaining why and how
those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed
pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate’s brief.
However, where counsel submits a petition and no-merit letter
that do satisfy the technical demands of Turner/Finley, … this
Court … must then conduct its own review of the merits of the
case. If [this Court] agrees with counsel that the claims are
2
Appellant initially requested an extension of time to respond to Attorney
Foltz’s Anders brief and application to withdraw. Pro se Application for
Extension, 9/13/2018, at 1. Before any order was entered by this Court,
Appellant filed the response referenced supra, wherein he also requested
that the Superior Court enter an order permitting him to file a brief pro se.
Response to Counsel’s Petition to Withdraw and Anders Brief, 9/25/2018, at
4. This Court entered an order permitting Appellant to file a response to
counsel’s petition to withdraw and Anders brief within 30 days. Order,
10/15/2018, at 1. Appellant filed neither a brief nor any further filings after
the entry of the October 15, 2018 order.
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without merit, [this Court] will permit counsel to withdraw and
deny relief. By contrast, if the claims appear to have merit, [this
Court] will deny counsel’s request and grant relief, or at least
instruct counsel to file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citations omitted).
We are satisfied that counsel has complied with the technical
requirements of Turner and Finley. Therefore, we will consider the
substantive issue contained in counsel’s Anders brief and Appellant’s
response: whether the PCRA court erred in denying Appellant’s PCRA petition
based upon Attorney Hosay’s failure to call Appellant and his mother as
witnesses to testify at the suppression hearing. See Anders Brief at 5;
Response to Counsel’s Petition to Withdraw and Anders Brief, 9/25/2018, at
2.
On review of orders denying PCRA relief, our standard is to determine
whether the PCRA court’s ruling is free of legal error and supported by the
record. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.
2017) (citation omitted). To prevail on a petition for PCRA relief, a
petitioner must plead and prove, by a preponderance of the evidence, that
his conviction or sentence resulted from one or more of the circumstances
enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include
ineffectiveness of counsel, which “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S. § 9543(a)(2)(ii).
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“[C]ounsel is presumed to be effective, and the petitioner bears the
burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d
130, 150 (Pa. 2018).
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted).
In cases involving the failure to call a potential witness, a petitioner
satisfies the underlying-merit and prejudice prong
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 of the witness was so prejudicial as to
have denied the defendant a fair trial.... To demonstrate []
prejudice, a petitioner must show how the uncalled witnesses’
testimony would have been beneficial under the circumstances of
the case. Counsel will not be found ineffective for failing to call a
witness unless the petitioner can show 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. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted).
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In the instant case, at the PCRA evidentiary hearing, Appellant’s
mother testified that around 8 a.m. on November 5, 2011, eight to ten
police officers came to her house, knocked on the door, and demanded to
know whether Appellant was home. N.T., 3/14/2013, at 24-28. According
to Appellant’s mother, they did not present a warrant, but the officers
entered the home. Id. at 32. Several officers stayed with her on the first
floor while the rest went upstairs, including an officer with his gun drawn.
Id. at 26-28. The officers reappeared, leading Appellant by the hood on his
sweatshirt down the stairs, outside, and into the back of a police car. Id. at
29-32. She claims she provided all of this information to Attorney Hosay
prior to the suppression hearing, she was expecting to testify at the hearing,
and Attorney Hosay did not provide her with any reason why he decided not
to call her on the day of the hearing. Id. at 40-55.
Also at the evidentiary hearing, Appellant testified that he was
sleeping upstairs when police officers, including one with his gun drawn,
barged into his room, threw clothes at him, and told him to put on the
clothes because he was coming to the station. Id. at 66-70. According to
Appellant, one officer grabbed him by his hood, and put him into the police
car. Id. He acknowledged that he signed the non-custodial rights form, but
claims it was not explained to him, he did not know what he was signing, he
was told he could not leave, and he was escorted by an officer every time he
went to the bathroom over the course of the day. Id. at 70-80. Appellant
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stated he explained the foregoing to Attorney Hosay, who told him he was
not going to call him to testify at the suppression hearing because his
testimony might harm him at trial. Id. at 81-84, 87-91.
Attorney Hosay, on the other hand, denied that Appellant and his
mother ever told him the version of events consistent with their testimony,
including that officers had a gun drawn or led Appellant out by his hood. Id.
at 104-132. He said if they had, he certainly would have called them to
testify at the hearing. Id. He stated that he interviewed both Appellant and
his mother several times, and they never told him such details or gave any
indication that he may have had a basis to argue that Appellant was in
custody at the time he gave the First Statement. Id. Attorney Hosay also
testified that his notes from the interviews did not contain any mention of
such facts. Id. at 135, 145.
Detective Silberstein testified as a rebuttal witness, stating that there
were only about six officers at the house on November 5, 2011, Appellant’s
mother gave them permission to go upstairs to talk to Appellant, none of the
officers had a gun raised or displayed, Appellant walked down the stairs on
his own accord, the police did not order him to come to the station, he
voluntarily agreed to go to the station, and his freedom to leave was not
restrained at any time up until he was arrested. Id. at 156-73.
In an exhaustive opinion, the PCRA court thoroughly analyzed the
testimony at the PCRA evidentiary hearing, and concluded that Attorney
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Hosay was not ineffective for choosing not to call Appellant and his mother
as witnesses at the suppression hearing. PCRA Court Opinion, 12/1/2017, at
23. Specifically, the PCRA Court found the testimony of Appellant and his
mother to be incredible, including their testimony that prior to the
suppression hearing they told Attorney Hosay the facts testified to at the
PCRA hearing, and instead credited the testimony of Attorney Hosay that he
had no basis to believe that Appellant and his mother had evidence to
contradict the testimony of police or support a claim that Appellant was in
custody prior to or at the time of the First Statement. Id. at 23-30. In
short, the PCRA court determined that Attorney Hosay “cannot be ineffective
for failing to introduce evidence that neither [Appellant] nor his mother ever
told [him].” Id. at 27 (citing Commonwealth v. Uderra, 706 A.2d 334,
340 (Pa. 1998) (“Appellant’s own failure to cooperate with counsel in order
to apprise him of allegedly relevant information cannot now provide a basis
for ineffectiveness claims.”); Commonwealth v. Bond, 819 A.2d 33, 45-46
(Pa. 2002) (“Counsel cannot be found ineffective for failing to introduce
information uniquely within the knowledge of the defendant and his family
which is not provided to counsel.”).
In his response to the Anders brief and petition to withdraw,
Appellant essentially urges us to ignore the PCRA court’s credibility findings
and make our own based upon the cold record, thereby crediting the
testimony of him and his mother. Response to Counsel’s Petition to
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Withdraw and Anders Brief, 9/25/2018, at 2. This we cannot do. “A PCRA
court’s credibility findings are to be accorded great deference,” and, if the
findings are supported by the record, they are binding upon a reviewing
court. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.
2017) (citation omitted). Based upon the testimony at the PCRA hearing
and the PCRA court’s credibility determinations, we discern no abuse of
discretion in the PCRA court’s decision to dismiss Appellant’s PCRA petition.
Because Appellant and his mother did not reveal facts in their interviews
with counsel supporting an argument that Appellant was in custody prior to
and at the time Appellant provided the First Statement, it was reasonable
not to present their testimony. Moreover, based upon the PCRA court’s
credibility findings, Appellant failed to demonstrate prejudice. Indeed,
[t]his case [] does not involve a trial judge who was convinced
that the unpresented evidence raised a reasonable probability
that the result might have been different. The PCRA judge here
- the very judge who presided at [the suppression hearing] -
reached the opposite conclusion after a thorough PCRA
evidentiary hearing in this case.
Bond, 819 A.2d at 45.
Furthermore, our independent review of the certified record does not
reveal any other meritorious issues. See Wrecks, 931 A.2d at 721.
Therefore, we affirm the PCRA court’s order dismissing Appellant’s PCRA
petition and grant counsel’s application to withdraw.
Order affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/19
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