Com. v. Dockery, T. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TYREE DOCKERY, : No. 2063 EDA 2017
:
Appellant :
Appeal from the PCRA Order, April 12, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004934-2012
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 28, 2018
Tyree Dockery appeals pro se from the April 12, 2017 order denying
his petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant facts of this case in its April 12,
2017 opinion, and we need not reiterate them here. (See PCRA court opinion,
4/12/17 at 2-3.) The relevant procedural history of this case is as follows:
On March 1, 2012, [appellant] was arrested and
charged with murder and related offenses. On
January 6, 2014, [appellant] appeared before th[e
trial c]ourt and elected to be tried by a jury. On
January 13, 2014, the jury convicted [appellant] of
Third-Degree Murder, Firearms Not to be Carried
Without a License, and Possession of an Instrument of
Crime (“PIC”).
On April 11, 2014, th[e trial c]ourt sentenced
[appellant] to twenty to forty years[’] imprisonment
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for Third-Degree Murder, and a consecutive term of
two and-a-half [sic] to five years for Firearms Not to
be Carried Without a License, for a total sentence of
twenty-two and-a-half [sic] to forty-five years[’]
imprisonment.
On May 8, 2014[, appellant] filed a Notice of
Appeal. On December 4, 2014, the Superior Court
affirmed his judgment of sentence. [See
Commonwealth v. Dockery, 116 A.3d 678
(Pa.Super. 2014) (unpublished memorandum),
appeal denied, 114 A.3d 1038 (Pa. 2015).] On
April 14, 2015, our Supreme Court denied his Petition
for Allowance of Appeal. [Id.]
On April 4, 2016, [appellant] filed a timely
pro se [PCRA] petition. On October [28], 2016, PCRA
counsel, [James Berardinelli, Esq.,] entered his
appearance. On February 16, 2017, PCRA counsel—
finding the petition meritless—filed a no-merit letter
pursuant to Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) and a Motion to Withdraw.
Id. at 1-2 (footnotes omitted).
On March 2, 2017, the PCRA court provided appellant with notice of its
intention to dismiss his petition without a hearing, pursuant to
Pa.R.Crim.P. 907(1). Appellant filed a response to the PCRA court’s Rule 907
notice on March 21, 2017. On April 6, 2017, the PCRA court conducted a
hearing that was limited to addressing the additional claims appellant raised
with respect to PCRA counsel in his Rule 907 response. Thereafter, on
April 12, 2017, the PCRA court granted PCRA counsel permission to withdraw
and formally dismissed appellant’s petition without an evidentiary hearing.
This timely pro se appeal followed on May 10, 2017. The record reflects that
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the PCRA court did not order appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
Appellant raises the following issues for our review:
[1.] [Whether t]rial counsel[1] was ineffective for
failing to interview and call [a]ppellant’s alibi
witnesses, and PCRA counsel was ineffective for
failing to zealously and thoroughly investigate
the claim when witnesses were brought to both
counsel’s attention and were available for
interview and to testify, which prejudiced
[a]ppellant and amounted to ineffective
assistance of both counsels?
[2.] [Whether t]rial counsel was ineffective for
failing to challenge the Commonwealth’s due
diligence in bringing [a]ppellant to trial within
365 days pursuant to Rule 600, in a violation of
the Speedy Trial Rights, and rendered
incompetent counsel in failing to file a motion
for dismissal and in raising the same as
[a]ppellant’s direct appeal counsel, and PCRA
counsel rendered incompetent counsel in failing
to raise the issue in PCRA proceedings through
amendment, where PCRA counsel filed a
no-merit letter when the issue has arguable
merit?
[3.] [Whether d]irect appeal counsel was ineffective
for failing to raise the illegality of [a]ppellant’s
sentence under the new rule pronounced in
Alleyne v. United States[, 570 U.S. 99
(2013)]?
[4.] [Whether t]he Commonwealth violated Brady
v. Maryland[, 373 U.S. 83 (1963),] by failing
to disclose secretive agreement/deal made with
the Commonwealth’s witness prior to
[a]ppellant’s trial, in exchange for witness’s
1Appellant was represented at trial and on direct appeal by William L. Bowe,
Esq. (hereinafter, “trial counsel”).
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testimony, which was never disclosed to trial
counsel, and trial counsel was ineffective for not
objecting and impeaching the witness’s
credibility, which was a factor before the jury
and would have changed the outcome of the
proceedings?
[5.] [Whether t]he [t]rial [c]ourt erred when it
dismissed [a]ppellant’s [PCRA petition] without
an Evidentiary Hearing relative to [a]ppellant’s
claims of ineffective assistance of counsel
despite a counseled “no-merit” letter filed by
appointed counsel, wherein [a]ppellant’s claims
were not “patently frivolous” and, if proven,
would have entitled [a]ppellant to relief?
Appellant’s brief at 7-8.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants
great deference to the findings of the PCRA court, and we will not disturb those
findings merely because the record could support a contrary holding.”
Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation
omitted). In order to be eligible for PCRA relief, a defendant must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3). Lastly, we note that where the PCRA court has dismissed a
petitioner’s petition without conducting an evidentiary hearing, as was the
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case here, we review the PCRA court’s decision for an abuse of discretion.
See Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (citation
omitted), cert. denied, 135 S. Ct. 56 (2014).
Here, appellant’s first two claims concern PCRA counsel’s purported
ineffectiveness in failing to raise various allegations of ineffectiveness on the
part of trial counsel. Generally, to prevail on a claim of ineffective assistance
of counsel under the PCRA, a petitioner must plead and prove by a
preponderance of the evidence that counsel’s ineffectiveness “so undermined
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Specifically, a petitioner must establish the following three factors: “first[,]
the underlying claim has arguable merit; second, that counsel had no
reasonable basis for his action or inaction; and third, that Appellant was
prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super.
2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d
1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487
(Pa. 2011). Additionally, we note that “counsel cannot be held ineffective for
failing to pursue a meritless claim[.]” Commonwealth v. Hall, 867 A.2d
619, 632 (Pa.Super. 2005), appeal denied, 895 A.2d 549 (Pa. 2006).
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Appellant first avers that trial counsel was ineffective in failing to
interview and/or call various alibi witnesses, and that PCRA counsel should
have “zealously and thoroughly investigate[d] t[his] claim.” (Appellant’s brief
at 9.) Appellant also contends that trial counsel was ineffective in failing to
allege a Rule 6002 violation both at trial and on direct appeal, and that PCRA
counsel should have raised this issue in an amended PCRA petition in lieu of
petitioning to withdraw. (Id. at 13.)
Our supreme court has set forth the proper framework for alleging a
layered ineffective assistance of counsel claim in the context of the PCRA:
Succinctly stated, a petitioner must plead in his
PCRA petition that his prior counsel, whose alleged
ineffectiveness is at issue, was ineffective for failing
to raise the claim that the counsel who preceded him
was ineffective in taking or omitting some action. In
addition, a petitioner must present argument, in briefs
or other court memoranda, on the three prongs of the
[ineffectiveness] test as to each relevant layer of
representation. . . . [T]his means that the arguable
merit prong of the [ineffectiveness] test as to the
claim that appellate counsel was ineffective in not
raising trial counsel’s ineffectiveness consists of the
application of the three-prong [ineffectiveness] test to
the underlying claim of trial counsel’s ineffectiveness.
If any one of the prongs as to trial counsel’s
ineffectiveness is not established, then necessarily the
claim of appellate counsel’s ineffectiveness fails. Only
if all three prongs as to the claim of trial counsel’s
ineffectiveness are established, do prongs 2 and 3 of
the [ineffectiveness] test as to the claim of appellate
counsel’s ineffectiveness have relevance, requiring a
determination as to whether appellate counsel had a
reasonable basis for his course of conduct in failing to
raise a meritorious claim of trial counsel’s
2 Pa.R.Crim.P. 600, Prompt Trial.
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ineffectiveness (prong 2) and whether petitioner was
prejudiced by appellate counsel’s course of conduct in
not raising the meritorious claim of trial counsel’s
ineffectiveness (prong 3).
Commonwealth v. Reid, 99 A.3d 470, 482 (Pa. 2014) (citation omitted).
Our review of appellant’s pro se brief indicates that he has failed to
properly raise his layered ineffectiveness claims by applying the three-prong
ineffectiveness test to each level of representation. A determination that trial
counsel rendered ineffective assistance is a prerequisite to finding that any
subsequent counsel was himself ineffective, and no such findings were
demonstrated in this case. See Commonwealth v. Burkett, 5 A.3d 1260,
1270 (Pa.Super. 2010). Accordingly, we conclude that appellant has waived
his first two claims by failing to properly layer his distinct ineffectiveness
claims.3
3 In any event, we note that appellant’s alibi claim would fail. “Where a[n
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.” Commonwealth v. Michaud, 70 A.3d 862, 867
(Pa.Super. 2013) (citation omitted; brackets in original). Here, the record
reveals that appellant failed to identify the alleged alibi witness in his pro se
PCRA petition, nor include any proof that indicated that said witness was
willing and available to testify at the January 2014 trial, or what the substance
of their testimony would be.
We further note appellant’s contention that trial and PCRA counsel were
ineffective in failing to pursue a Rule 600 challenge is also waived for failure
to raise it in his pro se PCRA petition or his Rule 907 response. See id. at
585 (holding, inter alia, that appellant waived his claims he failed to raise in
his pro se and amended PCRA petitions); see also 42 Pa.C.S.A. § 9544(b)
(stating, “an issue is waived if the petitioner could have raised it but failed to
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In reaching this decision, we note that appellant’s status as a pro se
litigant does not absolve him from responsibility for compliance with the rules.
Although this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status
confers no special benefit upon the appellant. To the
contrary, any person choosing to represent himself in
a legal proceeding must . . . assume that his lack of
expertise and legal training will be his undoing.
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (citation
omitted).
Appellant next argues that his sentence was illegal under Alleyne and
its progeny and that direct appeal counsel was ineffective for failing to raise
this claim. (Appellant’s brief at 16.)
In Alleyne, the United States Supreme Court held that the Sixth
Amendment requires that “[a]ny fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Id. at 103 (citation omitted). Thereafter, in
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), affirmed, 140
A.3d 651 (Pa. 2016), a panel of this court held that the version of mandatory
minimum sentencing provisions set forth in 42 Pa.C.S.A. § 9718 that were in
effect from January 1, 2007 until August 17, 2014, were unconstitutional in
their entirety in light of Alleyne and its progeny. Wolfe, 106 A.3d at 806,
do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”).
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citing, inter alia, Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)
(en banc), appeal denied, 121 A.3d 496 (Pa. 2015).
Instantly, the record reflects that appellant’s Alleyne claim is baseless
because he was not subject to mandatory minimum sentencing provisions in
this matter. As noted, appellant was sentenced to a term of 20 to 40 years’
imprisonment for third-degree murder, and a consecutive term of 2½ to
5 years’ imprisonment for carrying a firearm without a license, both within the
statutory maximums. Appellant received no further penalty for PIC.
Moreover, courts in this Commonwealth have recognized that Alleyne does
not apply retroactively to cases on collateral review. See Commonwealth
v. Riggle, 119 A.3d 1058, 1064 (Pa.Super. 2015) (stating that, “while this
Court has held that Alleyne applies retroactively on direct appeal, we have
declined to construe that decision as applying retroactively to cases during
PCRA review”); Commonwealth v. Washington, 142 A.3d 810, 814-815
(Pa. 2016) (holding that the Alleyne decision does not apply retroactively to
collateral attacks upon mandatory minimum sentences advanced in PCRA
proceedings). Accordingly, appellant’s claim warrants no relief and direct
appeal counsel was not ineffective for failing to pursue this meritless claim.
See Hall, 867 A.2d at 632.
Appellant next argues that the Commonwealth violated Brady by failing
to disclose that witness Freda Bradley was promised housing in exchange for
her testimony. (Appellant’s brief at 19.) In conjunction with this claim,
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appellant contends that trial counsel was ineffective for failing to impeach
Bradley’s credibility at trial. (Id.) For the following reasons, we disagree.
In Brady, the United States Supreme Court held that “the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. Our
supreme court has continually recognized that in order to establish the
existence of a Brady violation, a defendant must establish: “(1) evidence
was suppressed by the prosecution; (2) the evidence, whether exculpatory or
impeaching, was favorable to the defendant; and (3) prejudice resulted.”
Commonwealth v. Cousar, 154 A.3d 287, 301 (Pa. 2017) (citation omitted).
Prejudice is demonstrated where the evidence
suppressed is material to guilt or innocence. Further,
[f]avorable evidence is material, and constitutional
error results from its suppression by the government,
if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.
Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (citations and
internal quotation marks omitted); see also Commonwealth v. Roane, 142
A.3d 79, 89 (Pa.Super. 2016) (stating, when a Brady claim is advanced under
the PCRA, an appellant can only obtain relief by establishing that the alleged
violation “so undermined the truth-determining process that no reliable
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adjudication of guilt or innocence could have taken place.” (citation and
internal quotation marks omitted)).
Here, appellant failed to meet his burden of establishing that the
omission of such evidence prejudiced him. As the PCRA court properly noted
in its opinion:
This claim warrants no relief as [appellant],
offering no evidence that such a promise was offered,
fails to plead and prove his claim. Even if such a
promise were offered, [appellant] cannot show
prejudice. Bradley recanted her statement to police at
trial. Trial counsel used this recantation to support his
case in his closing argument. N.T., 1/09/2014 at 151-
52. Since Bradley recanted at trial, [appellant] cannot
show that had the jury been aware of the alleged
housing promise, there was a reasonable probability
that the trial’s outcome would have been different.
PCRA court opinion, 4/12/17 at 5 (case citation omitted). Accordingly, we
decline to find that trial counsel was ineffective for failing to pursue this
meritless Brady claim. See Hall, 867 A.2d at 632.
Lastly, appellant baldly contends that the PCRA court erred in dismissing
his PCRA petition without conducting an evidentiary hearing. (Appellant’s brief
at 23.) We disagree.
This court has long recognized that there is no absolute right to an
evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super.
2006) (citation omitted). “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.” Commonwealth v. Wah, 42
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A.3d 335, 338 (Pa.Super. 2012) (citations omitted). When the PCRA court
denies a petition without an evidentiary hearing, we “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. Khalifah, 852 A.2d
1238, 1240 (Pa. Super. 2004).
As discussed, the PCRA court properly found that appellant’s claims were
either waived or devoid of merit. Because appellant’s claims are frivolous and
without any support in the record or from other evidence, we conclude that
the PCRA court did not err in dismissing appellant’s petition without conducting
an evidentiary hearing. Accordingly, we affirm the April 12, 2017 order of the
PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/17
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