Com. v. Travillion, J. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMAR LASHAWN TRAVILLION, : No. 73 WDA 2015
:
Appellant :
Appeal from the PCRA Order, January 8, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos. CP-02-CR-0003767-2003,
CP-02-CR-0007963-2003, CP-02-CR-0008353-2003
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 10, 2016
Jamar Lashawn Travillion appeals from the order entered in the Court
of Common Pleas of Allegheny County that dismissed his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546
(“PCRA”).
The PCRA court set forth the procedural history of this case as follows:
On February 26, 2006, [appellant] was found
guilty of the charges of second degree murder,
robbery, criminal attempt to commit criminal
homicide, aggravated assault, two counts of violation
of the Uniform Firearms Act, and one count of
possession of a small amount of a controlled
substance. A presentence report was ordered in aid
of sentencing and [appellant] was sentenced on
May 15, 2006, to the mandatory life without parole
for the conviction of second degree murder and a
consecutive sentence of one hundred eight to two
hundred sixteen months for his conviction of the
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charge of robbery and a consecutive sentence of
twelve to twenty-four months for his conviction of
possessing a firearm without a license. [Appellant]
did not file either post-sentencing motions or a direct
appeal to the Superior Court.
On April 2, 2007, his appellate counsel filed a
petition for post-conviction relief requesting that his
appellate rights be reinstated. On June 4, 2007, this
Court entered an order granting the reinstatement of
his appellate rights and [appellant’s] appellate
counsel filed post-sentencing motions on June 15,
2007. On August 29, 2007, a hearing was held on
those motions and an Order was entered on
January 31, 2008 denying those motions.
[Appellant] filed an appeal from the denial of his
post-sentencing motions and was directed to file a
concise statement of matters complained of on
appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). In that concise statement,
[appellant] suggested that there were four claims of
error. Initially, [appellant] maintained that he was
denied his right to counsel under the United States
and Pennsylvania Constitutions. [Appellant] also
maintained he was denied his right to testify at the
time of his trial. [Appellant] also suggested that this
Court erred when it denied his motion to suppress
the evidence seized by the Ross Township Police, the
identification made of him by one of the victims and
his inculpatory statements made to the investigating
homicide detectives. Finally, [appellant] contended
that this Court intimidated one of his witnesses
thereby causing that witness to refuse to testify.
This Court filed its 1925(b) Opinion and
addressed all of the claims of error raised by
[appellant’s] appellate counsel, Thomas Farrell.
Although Farrell alleged four claims of error in his
statement of matters complained of on appeal, his
appellate brief only addressed one issue, that being
[appellant’s] claim that he was denied his right to
counsel. Following the decision by the Pennsylvania
Supreme Court in Commonwealth v. Luccarelli,
601 Pa. 185, 971 A.2d 1173 (2009), this Court
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filed an addendum Opinion in which it maintained
that [appellant] had forfeited his right to counsel as
a result of his extremely dilatory conduct and
obstructive behavior. On October 13, 2010, the
Superior Court vacated [appellant’s] sentences and
remanded his cases [sic] for the purpose of a new
trial. The Commonwealth filed an application for
allowance of appeal to the Pennsylvania Supreme
Court and Farrell responded to that application with
a no answer letter. On April 29, 2011, the
Pennsylvania Supreme Court issued an Order
reversing the Superior Court’s disposition of
[appellant’s] appeal and reinstated the judgment of
sentence imposed on the basis of its decision in
Commonwealth v. Luccarelli, supra. Farrell filed
an application for reargument with the Pennsylvania
Supreme Court, which was denied on July 6, 2011.
On June 14, 2012, [appellant] filed a pro se
petition for post-conviction relief and this Court
appointed his current counsel, Robert S. Carey, to
represent him in connection with that petition and to
file an amended petition for post-conviction relief,
which was done. A hearing was held on
November 14, 2014, at which time [appellant]
presented the testimony of his former counsel,
Farrell. On January 8, 2015, this Court entered an
Order denying [appellant’s] petition for
post-conviction relief from which he has taken the
instant timely appeal. [Appellant] was required to
file a concise statement of matters complained of on
appeal and in complying with that directive, he has
asserted two claims of error, the first being that his
former appellate counsel was ineffective for failing to
file a response to the Commonwealth’s application
for allowance of appeal to the Pennsylvania Supreme
Court and, second, that his former appellate counsel
was also ineffective for failing to address all of the
issues that he originally raised in his statement of
matters complained of on appeal.
PCRA court opinion, 3/10/15 at 2-4.
Appellant raises the following issues on appeal:
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1. Whether the [PCRA] court erred in finding that
appellate counsel was effective when the
record establishes that Attorney Farrell had no
reasonable strategic basis for failing to file a
response to the Commonwealth’s Petition for
Allowance of Appeal and, based on counsel’s
omission, the Supreme Court reinstated
[appellant’s] judgment of sentence?
2. Whether the [PCRA] court erred in finding
appellate counsel effective where the record
shows that Attorney Farrell waived winning
claims when he failed to brief meritorious
issues that were previously identified in the
Rule 1925 statement?
Appellant’s brief at 3.
In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing,
viewed in the light most favorable to the prevailing party.”
Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation
omitted). Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d
875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and
credibility determinations supported by the record. Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we
review the PCRA court’s legal conclusions de novo. Id.
Appellant’s issues assert ineffective assistance of appellate counsel.
In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this
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presumption, Appellant must establish three factors.
First, that the underlying claim has arguable merit.
See Commonwealth v. Travaglia, 541 Pa. 108,
661 A.2d 352, 356 (Pa. 1995). Second, that counsel
had no reasonable basis for his action or inaction.
Id. In determining whether counsel’s action was
reasonable, we do not question whether there were
other more logical courses of action which counsel
could have pursued; rather, we must examine
whether counsel’s decisions had any reasonable
basis. See Rollins, 738 A.2d at 441;
Commonwealth v. (Charles) Pierce, 515 Pa. 153,
527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
must establish that he has been prejudiced by
counsel’s ineffectiveness; in order to meet this
burden, he must show that ‘but for the act or
omission in question, the outcome of the proceedings
would have been different.’” See Rollins, 738 A.2d
at 441 (quoting Travaglia, 661 A.2d at 357). A
claim of ineffectiveness may be denied by a showing
that the petitioner’s evidence fails to meet any of
these prongs. Commonwealth v. (Michael)
Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
2001); Commonwealth v. Basemore, 560 Pa. 258,
744 A.2d 717, 738 n.23 (Pa. 2000);
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
693, 701 (Pa. 1998) (“If it is clear that Appellant has
not demonstrated that counsel’s act or omission
adversely affected the outcome of the proceedings,
the claim may be dismissed on that basis alone and
the court need not first determine whether the first
and second prongs have been met.”). In the context
of a PCRA proceeding, Appellant must establish that
the ineffective assistance of counsel was of the type
“which, in the circumstances of the particular case,
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). See
also (Michael) Pierce, 786 A.2d at 221-22;
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d
326, 333 (Pa. 1999).
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
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Appellant first complains that the PCRA court erred in finding attorney
Farrell effective “when the record establishes that Attorney Farrell had no
reasonable strategic basis for failing to file a response to the
Commonwealth’s Petition for Allowance of Appeal and, based on counsel’s
omission, the Supreme Court reinstated [appellant’s] judgment of sentence.”
(Appellant’s brief at 12.) To support that contention, appellant sets forth the
following colloquy that took place between the Commonwealth and attorney
Farrell at the PCRA hearing:
Q You filed a no answer letter in response to the
petition for allowance of appeal, right?
A I did.
Q Now working in the DA’s Office in an appellate
capacity, you would agree with me that’s the
standard practice in replying to petitions for
allowance of appeal, correct?
A To answer your question, that’s correct and
that’s a wrong practice for a defense attorney
to take in this day and age. That was wrong
for me, I should have never done that and I
haven’t made that mistake since. Prior to that
decision, the Supreme Court -- it was strongly
believed that if you filed a letter and not
respond with a brief, that they would -- you
wouldn’t red flag it, okay. So that’s the
purpose of not responding with a brief because
you would red flag it. In this case, like I had
done in the past as a defense attorney, I did
not file a brief in response because I didn’t
want to red flag it. However, I found out from
this case that other cases that the Supreme
Court had changed the position. That when
the Commonwealth takes an appeal that they
look at their appeal real strongly and they will
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reverse without briefs or argument. So in this
case I made a blunder, I made a mistake but I
never will have that happen again in any other
case and I have not done that since.
Notes of testimony, 11/14/14 at 17-18. Even though counsel admitted to
making a mistake, we need not determine whether his failure to file a reply
to the Commonwealth’s application for allowance of appeal was reasonable
because appellant has failed to demonstrate prejudice.
As aptly noted by the PCRA court and as reflected in the record, our
supreme court reinstated appellant’s judgment of sentence after finding that
this court made an error of law when reversing the trial court’s judgment of
sentence and remanding for a new trial. (PCRA court opinion, 3/10/15 at 9;
Docket #47.) After our supreme court entered that order, the record
reflects that attorney Farrell filed an application for reconsideration in which
he advanced his arguments. (Notes of testimony, 11/14/14 at 20.) Our
supreme court denied appellant’s application.1 (Id.)
Therefore, regardless of whether attorney Farrell advanced his
arguments in a reply to the Commonwealth’s application for allowance of
appeal or in an application for reconsideration, our supreme court rejected
those arguments. As a result, appellant has not, and cannot, demonstrate
prejudice, and this claim lacks merit.
1
We note that the certified record contains the order denying the application for
reconsideration, but there is no sequence number associated with the entry.
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Appellant next complains that appellate counsel was ineffective
because he failed to raise certain claims on appeal that he raised in his
Rule 1925(b) statement.
Here, attorney Farrell raised four issues in his Rule 1925(b) statement,
but pursued only one issue on appeal.2 At the PCRA hearing, attorney
Farrell testified that he has several decades of appellate experience, and
then he explained his strategy for selecting appellate issues, as follows:
A What I do is I look at the brief – I’m sorry, I
look at the transcript. I go through the
transcript and I take copious notes, I have a
2
Appellant raised the following issues in his statement of errors complained of
on appeal:
1. Whether [appellant] was denied his
5th Amendment right to counsel during the trial
under both the Pennsylvania and United States
Constitution[s]?
2. Whether [appellant] was denied his absolute
right to testify during trial pursuant to the
Pennsylvania and/or United States Constitutions?
3. Whether the trial court erred in failing to grant
the motion to suppress evidence?
4. Whether the trial court erred, and/or violated the
[appellant’s] due process, when it intimidated
[appellant’s] witness when the court informed
the witness that he would be arrested for stating
during testimony that he was a jitney driver?
Statement of errors complained of on appeal, 4/3/08; Docket #41. Appellant
raised one issue on appeal: whether the trial court improperly deprived him of
his right of counsel. (Docket #72, Appendix A (Commonwealth v. Travillion,
No. 443 WDA 2008, unpublished memorandum (Pa.Super. filed October 13,
2010)).) In his brief, appellant mistakenly asserts that he raised two issues on
direct appeal. (Appellant’s brief at 18.)
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pad. I don’t read it like a novel but I go
through the transcript and I take copious notes
and read everything. I read the record, I write
and have notes to make sure that I understand
the record fully. . . .
I have raised almost every issue that has
been objected to at trial. The reason why I do
that is, if I look at an issue and I think it’s
really, really bad, sometimes I will not raise it
but most of the time I will raise all of those
issues in a concise statement to preserve. At
that time, in that short period of time, I don’t
have time to write a brief. I don’t have time to
look at all the law and so forth. I’m trying to
raise the issues, raise as many issues as I can
-- that’s really wrong. I raise all the issues
that have been preserved. Now on some of
them I look at it and say it’s stupid, I’m not
going to raise it in a concise statement. Things
like sometimes the weight of the evidence and
that kind of thing, I don’t raise it. But for the
most part, I raise all of the issues that have
been preserved and that’s what I do in a
concise statement.
Q Mr. Farrell, so you’re casting a [wider] net in
the 1925 B statement than you would later in
the brief?
A Absolutely. Many times I’ll raise seven, eight,
or maybe ten issues sometimes and I would
never raise that in a brief. I would never do
that in a brief. You raise two, three, four[]
issues tops. I think the most I ever raised was
five issues in a brief. But in a concise
statement, you raise those issues, you
ferret [sic] it out and you see what the trial
court writes. And there’s actually two cases
that I had with Judge Cashman. One of them
which is pending on appeal which is in front of
the Supreme Court of Pennsylvania right now
and the other has been reversed. In both
cases I thought that the issues were frivolous.
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I raised those and Judge Cashman wrote an
opinion and after looking at his opinion, I
realized maybe these claims did have merit
and we did win both of them in Superior Court.
Q Your answer is, you said something along the
lines “I would never raise ten issues in front of
the Superior Court in my brief;” why is that?
A Well, Judge Aldisert’s quote[3] where if you
raise ten, most appellate courts think that they
all have no issues. You can only win a new
trial on one issue, you don’t need two issues to
win a trial so I try to be selective in most
cases.
3
The approach to appellate advocacy embarked on by
present counsel for Appellant brings to mind the words
of the Honorable Ruggero J. Aldisert of the United
States Court of Appeals for the Third Circuit:
With a decade and a half of federal
appellate court experience behind me, I
can say that even when we reverse a trial
court it is rare that a brief successfully
demonstrates that the trial court
committed more than one or two
reversible errors. I have said in open
court that when I read an appellant’s brief
that contains ten or twelve points, a
presumption arises that there is no merit
to any of them . . . [and] it is [this]
presumption ... that reduces the
effectiveness of appellate advocacy.
Aldisert, “The Appellate Bar: Professional
Competence and Professional
Responsibility -- A View From the
Jaundiced Eye of the Appellate Judge,” 11
Cap. U. L. Rev. 445, 458 (1982).
Commonwealth v. Robinson, 864 A.2d 460, 479-480 n.28 (Pa. 2004).
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Q So Mr. Farrell, you would agree with me then
that you’re picking the best issue you think you
have when you write your brief to the Superior
Court?
A I try to raise the best issue that I can. . . .
Notes of testimony, 11/14/14 at 12-15.
Here, attorney Farrell had a reasonable basis for pursuing one issue on
appeal: he focused on the one issue that he determined was the most likely
to prevail. His strategy comports with effective appellate advocacy, and his
actions, therefore, were reasonable. Although our inquiry stops there, we
note that appellant claims that he suffered prejudice because attorney
Farrell’s “omission denied the opportunity for complete appellate review.”
(Appellant’s brief at 19.) Appellant, however, entirely fails to demonstrate
how counsel’s strategy so undermined the truth determining-process so that
no reliable adjudication of his guilt or innocence could have taken place.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2016
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