Com. v. Bell, M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARTHA FENCHAK BELL
Appellant No. 620 WDA 2013
Appeal from the PCRA Order March 14, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005045-2004
BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 5, 2014
Appellant, Martha Fenchak Bell, appeals from the denial of post-
conviction relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546, (PCRA) entered on March 14, 2013, by the Honorable David R.
Cashman, Court of Common Pleas of Allegheny County. We affirm.
As we write exclusively for the parties, who are familiar with the
factual context and legal history of this case, we set forth only so much of
the procedural history as is necessary to our analysis.
Bell was convicted on February 8, 2007, of one count each of the
following crimes in connection with the death of Mabel Taylor: (1)
involuntary manslaughter, (2) neglect of a care-dependent person, (3)
recklessly endangering another person, and (4) criminal conspiracy. Bell was
then sentenced on February 12, 2007, to 22-44 months’ imprisonment.
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During the sentencing hearing, the prosecution asked for clarification on
whether the sentence was consecutive to the federal sentence Bell was
already serving. The sentencing court confirmed that the sentence would be
consecutive to the federal sentence. However, when the sentencing court
entered the sentencing order it neglected to write that the sentence would
be served consecutively to the federal sentence. This error was corrected in
the written sentencing order on February 2, 2009, when the sentencing
court amended the written order to show that the sentence was to be served
consecutively to the federal convictions.
Bell appealed to this Court, and we affirmed in a memorandum
decision filled on April 7, 2010. The Supreme Court of Pennsylvania denied
allocator on December 1, 2010. Thereafter, Bell filed a timely PCRA petition.
The PCRA court held a hearing on Bell’s PCRA petition and subsequently
entered an order denying relief on March 14, 2013. Bell then filled this
timely appeal.
On appeal, Bell raises five issues for our review:
I. Whether the trial court lacked authority to modify the
terms of the written judgment of sentence where there
was no clear clerical error in the sentence and whether Ms.
Bell’s right to due process was violated when the effective
date of the sentence was changed to Ms. Bell’s detriment?
II. Whether the Commonwealth waived the right to challenge
the sentence as expressed in the written sentencing order?
III. Whether the PCRA court erred in not finding appellate
counsel was ineffective for failing to object to the sentence
modification?
IV. Whether trial counsel was ineffective for failing to make
the argument after trial that the Pennsylvania conviction
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was barred by 18 P.S. 111 which protects the right not to
be tried twice based on operative facts that substantially
overlap a related federal prosecution which resulted in
conviction and substantial sentence?
V. Whether trial counsel and appellate counsel were
ineffective for not objecting to violation of the
confrontations clause of the sixth amendment to the
constitution based on admission of nurse Galati’s
confession implicating herself and Martha bell in violation
of the Bruton rule?
Appellant’s Brief, at 2.
Our standard of review regarding a PCRA court's denial of a petition for
post-conviction relief is well settled. We examine whether the determination
of the PCRA court is supported by the evidence of record and is free of legal
error. See Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010).
The PCRA court's findings will not be disturbed unless there is no support for
the findings in the certified record. See id. Our scope of review is limited to
the findings of the PCRA court and the evidence of record. See
Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).
The first three issues on appeal all focus on the February 2, 2009
modification of the sentencing order by Judge Cashman. “It is well-settled in
Pennsylvania that a trial court has the inherent, common-law authority to
correct “clear clerical errors” in its orders.” Commonwealth v. Borrin, 12
A.3d 456, 471 (Pa. Super. 2011) (en banc). This authority is maintained by
the trial court even beyond the thirty day time period established in 42
Pa.C.S.A. § 5505. See id. A “clear clerical error” exists only where the trial
court’s intent to impose a certain sentence is clearly and unambiguously
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declared during the sentencing hearing. See id. Conversely, where such
stated intention is ambiguous, the terms of the written sentencing order
must control and the trial court does not have inherent power to correct its
mistake. See id.
In the instant case, the trial court clearly and unambiguously stated its
intent that the sentence would run consecutive to any federal sentence
during the sentencing proceeding. The following exchange occurred between
the judge and prosecutor:
Mr. Merrick: Your Honor, while we’re still on the record with
respect to this, I take it—I’m taking it from our discussion of the
law in chambers that it would be deemed consecutive to any
other sentence she would be serving?
The court: Based upon the case law, it is.
Mr. Merrick: Yes, Sir.
The court: Okay.
N.T., Sentencing, 02/12/07, at 16. In light of this, it was within the trial
court’s power to modify the sentencing order to reflect its clear intent.
Therefore, Bell’s first claim must fail.
Bell’s second claim is that the Commonwealth waived the right to
challenge the sentence as expressed in the written sentencing order. We find
that this claim is waived for a lack of support. “It is the Appellant who has
the burden of establishing his entitlement to relief by showing that the ruling
of the trial court is erroneous under the evidence or the law.”
Commonwealth v. Brewer, 876 A.2d 1029, 1035 (Pa. Super 2005)
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(quoting Miller v. Miller, 744 A.2d 778, 788 (Pa. Super. 1999)). Therefore,
where the appellant cites no authority to support its claim, the claim is
waived. See id.Here, Bell develops this claim in only two sentences—and without
citing a single authority. We find this claim waived.
Bell next argues trial counsel’s ineffective assistance for not objecting
to the modification of the sentencing order. Counsel is presumed effective,
and an appellant bears the burden of proving otherwise. See
Commonwealth v. Steele, 961 A.2d 215, 223 (Pa. 2007).
To prevail on his ineffectiveness claims, Appellant must plead
and prove, by a preponderance of the evidence, three elements:
(1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3)
Appellant suffered prejudice because of counsel’s action or
inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).
“A failure to satisfy any prong of the test for ineffectiveness will require
rejection of the claim.” Commonwealth v. Morrison, 878 A.2d 102, 105
(Pa. Super. 2005) (citation omitted). Counsel cannot be deemed ineffective
for failing to raise a meritless claim. See Commonwealth v. Fears, 86
A.3d 795, 803 (Pa. 2014).
Here, Bell’s claim of ineffective assistance of counsel fails because the
underlying claim is without merit. As noted, the trial court acted within its
authority to correct a “clear clerical error” in the sentencing order, to ensure
that it reflected the unambiguous intent expressed by the trial court during
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the sentencing hearing. Since counsel cannot be deemed ineffective for
failing to raise a non-meritorious claim, Bell’s contention that counsel was
ineffective fails.
In the fourth issue on appeal, Bell raises another ineffective assistance
of counsel claim. She maintains that his trial counsel was ineffective for
failing to make the argument that the Pennsylvania conviction was barred by
18 Pa.C.S.A. § 111. We need not delve very far into this issue as Bell’s
contention is patently false. Her counsel filed a motion to dismiss the
proceedings pursuant to 18 Pa.C.S.A. § 111. See Motion to Dismiss
Proceeding Pursuant to 18 Pa. C.S.A. § 111, 10/5/07.
Lastly, Bell asserts that trial and appellate counsel were ineffective for
failing to object to a violation of the Confrontation Clause of the Sixth
Amendment. Here, Bell asserts that trial and appellate counsel’s failure to
argue that the admission of Nurse Kathleen Galati’s statements implicating
Bell violated the Confrontation Clause and were analogous to a Bruton1
claim. In Bruton, the Supreme Court of the United States held that the
rights of an accused are violated, pursuant to the Confrontation Clause,
when a non-testifying co-defendant’s confession naming the accused as a
participant in the crime is introduced at their joint trial. See 391 U.S. at
136-7. Bell claims that the statements made by Galati were “crucial to the
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1
Bruton v. United States, 391 U.S. 123 (1968).
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prosecution because they were used to inflame the passions and prejudices
of the jury and prove an essential element of a charged offense by improper
means.” Appellant’s Brief at 23.
Here, this claim must fail for lack of merit. Galati was not tried along
with Bell in a joint trial; Galati entered a plea to one count of perjury
following Bell’s conviction (and was subsequently sentenced to a period of
five years’ probation). See Commonwealth v. Bell, 1460 and 1461 WDA
2007, at 8-9 n.1 (Pa. Super., filed April 7, 2010) (unpublished
memorandum). “It is the particularly “devastating” prejudicial effect and
inherent “unreliability” of a directly incriminating statement made by a non-
testifying co-defendant that powered Bruton's exception to the general
rule that cautionary charges are enough to avoid spillover prejudice in joint
trials.” Commonwealth v. McCrae, 832 A.2d 1026, 1038 (Pa. 2003)
(citation omitted; emphasis in original). Bruton simply does not apply here
as Galati was not a co-defendant. See id. (Bruton inapplicable to
statements made by an individual other than a non-testifying codefendant).
See also United States v. Artis, 917 F.Supp. 347, 349 (E.D. Pa. 1996).
What Bell is attempting in this appeal is, in actuality, a thinly veiled
attempt to re-litigate a previous claim. While an ineffectiveness claim is
distinct from its underlying claim, it may fail for the same reason the
underlying claim failed on direct appeal. See Commonwealth v. Collins,
888 A.2d 564, 573-74 (Pa. 2005). Here, the underlying claim that Galati’s
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testimony was a violation of the Confrontation Clause was raised in the
direct appeal to this Court, which ruled in a memorandum decision that it
was without merit. See Bell, 1460 and 1461 WDA 2007, at 15-20.
Therefore, this claim fails.
None of the issues complained of by Bell merit relief from this Court.
Therefore, we affirm the PCRA court’s denial of relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
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