Com. v. Greene, M. ( 2018 )

J-S52033-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL GREENE, :
:
Appellant : No. 249 MDA 2018
Appeal from the PCRA Order January 16, 2018
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001831-2004
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FIILED: OCTOBER 17, 2018
Michael Greene (Appellant) appeals from the January 16, 2018 order
dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual and procedural
background of this case as follows.
A jury convicted Appellant of aggravated assault and simple
assault after he brutally attacked his girlfriend. Thereafter, the
trial court sentenced Appellant to life imprisonment under 42
Pa.C.S. § 9714[1] due to Appellant’s [prior] convictions in
Massachusetts. Appellant appealed, and this Court remanded for
resentencing because the record did not reflect which of
Appellant’s thirty-three convictions in Massachusetts the trial
court utilized as Appellant’s two prior crimes of violence. Appellant
petitioned for allowance of appeal, which our Supreme Court
denied.
____________________________________________
1 Section 9714 requires mandatory minimum sentences for second or
subsequent convictions involving crimes of violence.
*Retired Senior Judge assigned to the Superior Court.
J-S52033-18
Subsequently, the [trial] court conducted a hearing on the
relevant issue and again sentenced Appellant to life imprisonment,
concluding that a 1977 conviction for unarmed robbery and a 1985
conviction for simple assault with intent to commit robbery were
substantially equivalent to Pennsylvania’s robbery crimes of
violence. Appellant filed a timely post-sentence motion, which the
court denied.
Commonwealth v. Greene, 25 A.3d 359, 360 (Pa. Super. 2011) (en banc).
Appellant filed a notice of appeal. This Court vacated Appellant’s judgment of
sentence and remanded for resentencing a second time because Appellant’s
prior convictions for unarmed robbery and simple assault with intent to
commit robbery could not be used for sentencing under section 9714. Id. On
February 20, 2013, our Supreme Court entered an order affirming on the basis
of this Court’s en banc opinion. Commonwealth v. Greene, 81 A.3d 829
(Pa. 2013) (per curiam).
The trial court resentenced Appellant on February 10, 2014, to a term
of 8 ½ to 20 years of incarceration. Appellant did not file an appeal.
On February 18, 2014, Appellant pro se filed the instant PCRA petition.
Counsel was appointed, and counsel filed an amended PCRA petition
containing eleven allegations of ineffective assistance of pre-trial, trial, and
appellate counsel. An evidentiary hearing was held on August 21, 2017. The
PCRA court granted the parties the opportunity to file supplemental briefs, and
Appellant filed a supplemental brief and second amended PCRA petition. By
-2-
J-S52033-18
order and memorandum, the PCRA court dismissed Appellant’s PCRA petition
on January 16, 2018. This timely-filed appeal followed.2
On appeal, Appellant sets forth four issues for our review.
1. Did the PCRA court err and/or abuse its discretion in failing to
grant post[-]conviction relief where trial counsel rendered
ineffective assistance by failing to object and move for the
exclusion of testimony of Officer Mills that Appellant had cuts
and abrasions on his hands where Officer Mills destroyed
photographs taken of Appellant’s hands, did not reflect the
aforesaid in his reports and previously testified, at a
preliminary hearing, that he did not see any injuries upon
Appellant?
2. Did the PCRA court err and/or abuse its discretion in failing to
grant post[-]conviction relief where trial counsel rendered
ineffective assistance of counsel in failing to take exception to
or object to the jury instruction given regarding crimen falsi
evidence and, then, request that the crimes or convictions
involving marijuana and other convictions not involving crimen
falsi, occurring in the Commonwealth of Massachusetts, be
distinguished within the instruction?
3. Did the PCRA court err and/or abuse its discretion in failing to
grant post[-]conviction relief where trial counsel rendered
ineffective assistance of counsel by failing to challenge the
admission of a photograph of [the victim] from 2001, utilized
to substantiate a prior wrong or bad act, pursuant to Pa.R.E.
403?
4. Did the PCRA court err and/or abuse its discretion in failing to
grant post[-]conviction relief where appellate counsel failed to
ensure that the certified record on appeal was complete,
specifically with regard to Commonwealth Exhibit #1, thereby
failing to preserve the issue for direct appellate review?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
We begin with our standard of review.
____________________________________________
2 Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
-3-
J-S52033-18
This Court analyzes PCRA appeals in the light most favorable
to the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
“To establish ineffectiveness of counsel, a PCRA petitioner must show the
underlying claim has arguable merit, counsel’s actions lacked any reasonable
basis, and counsel’s actions prejudiced the petitioner.” Commonwealth v.
Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations omitted). “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009).
Following a review of the certified record and the briefs for the parties,
we conclude that the opinion of the Honorable Michael J. Barrasse thoroughly
addresses Appellant’s issues and arguments and applies the correct law to
facts that are supported by the record. We discern no error or abuse of
discretion. See PCRA Court Opinion, 3/28/2018, at 6-9 (explaining that it did
not err in dismissing Appellant’s claim of ineffective assistance of trial counsel
-4-
J-S52033-18
regarding the testimony of Officer Mills because it was not supported by the
record and trial counsel acted reasonably: the record revealed that trial
counsel was aware of the destroyed photographs prior to trial and filed a
motion to quash on that basis, which was denied; once it was apparent that
evidence regarding injuries to Appellant’s hands would be admitted at trial,
counsel attempted to impeach Officer Mills by thoroughly cross-examining him
as to the destruction of the photographs); id. at 13-17 (explaining that it did
not err in dismissing Appellant’s claim of ineffective assistance of trial counsel
regarding the crimen falsi convictions because trial counsel’s conduct was
reasonable: counsel objected to the testimony regarding the possession
conviction and when overruled, sought to prohibit the Commonwealth from
using the drug conviction for impeachment; the trial court did not mention the
drug conviction during the crimen falsi jury instruction; neither the trial court
nor the Commonwealth emphasized the drug conviction; counsel reasonably
declined to draw attention to a fleeting reference that the jury may not have
noticed); id. at 25-29 (explaining that it did not err in dismissing Appellant’s
claim of ineffective assistance of trial counsel regarding the 2001 photograph
of the victim because trial counsel articulated a reasonable basis for
attempting to discredit the testimony of the victim even though it ultimately
opened the door for the photograph’s admission; the photograph was
admissible to corroborate the victim’s testimony under Pa.R.E. 404(b), and
despite its inflammatory nature, its evidentiary value outweighed its potential
-5-
J-S52033-18
prejudicial effect; excluding the photograph would not have changed the
outcome of the trial); id. at 29-32 (explaining that it did not err in dismissing
Appellant’s claim of ineffective assistance of appellate counsel because the
underlying claim lacked merit; counsel reasonably believed that the
photograph was included in the certified record; its inclusion would not have
changed the outcome of his appeal).
Therefore, we adopt the PCRA court’s opinion of March 28, 2018 as our
own and affirm the PCRA order based upon the reasons stated therein.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2018
____________________________________________
3 The parties shall attach a copy of the trial court’s March 28, 2018 opinion to
this memorandum in the event of further proceedings.
-6-