Com. v. Newman, R. ( 2014 )

J-S54021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD STEVEN NEWMAN
Appellant No. 519 MDA 2014
Appeal from the PCRA Order March 12, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001895-2008
CP-36-CR-0001896-2008
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 17, 2014
Appellant, Richard Steven Newman, appeals from the March 12, 2014
order dismissing his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this
appeal, counsel has requested leave to withdraw in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. After
careful review, we grant counsel leave to withdraw and affirm the order of
the PCRA court.1
____________________________________________
1
The Commonwealth has indicated it will not be filing an appellate brief in
this matter.
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On February 26, 2010, Appellant pled guilty but mentally ill to
stalking2 at CP-36-CR-0001895-2008, and one count each of burglary and
criminal attempt homicide,3 at CP-36-CR-0001896-2008. The PCRA court
summarized the remaining facts and procedural history of this case as
follows.
Following a hearing on the record, the [trial
c]ourt made a finding that [Appellant] was mentally
ill pursuant to the Crimes Code definition and that he
did not meet the definition of legal insanity. After
conducting a colloquy with [Appellant], the [trial
c]ourt accepted the guilty pleas. [Appellant] waived
his right to a presentence investigation and
immediately stood for sentencing. [On February 26,
2010, Appellant] received consecutive sentences on
each count, resulting in an aggregate sentence of not
imprisonment].
[Appellant] did not file a post-sentence motion
or Notice of Appeal to the Superior Court of
Pennsylvania. [Appellant] timely filed his [pro se]
PCRA petition on January 18, 2011 and present
counsel[, Vincent J. Quinn, Esquire (Attorney
Quinn)], was appointed [on January 26, 2011]. [On
November 2, 2012, Attorney Quinn] filed an
Amended PCRA [petition] alleging that trial counsel[,
Richard E. Meanix, Esquire (Attorney Meanix),] was
ineffective for advising [Appellant] to waive his right
to a presentence investigation and for failing to
present Sandra McCloskey as a witness at
sentencing. The waiver issue was denied without a
hearing and the [PCRA c]ourt submitted a notice
____________________________________________
2
18 Pa.C.S.A. § 2709.1.
3
18 Pa.C.S.A. §§ 3502 and 901.
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pursuant to Pa.Crim.P 907 of its intent to dismiss
without a hearing. A PCRA hearing was scheduled to
develop the second issue. [Attorney Quinn]
attempted to file a Second Amended PCRA [petition]
alleging that [Attorney Meanix] was ineffective for
sentencing; the [PCRA c]ourt denied that request
because the sentencing transcript indicated that
sentencing.
An evidentiary hearing was held on January
22, 2014. At the hearing, the defense presented
three witnesses, [Attorney] Meanix, [Appellant], and
Sandra McCloskey. Attorney Meanix testified that he
met with [Appellant] prior to sentencing and they
discussed calling Ms. McCloskey as a witness; both
desired that she testify at sentencing. Attorney
Meanix attempted to contact Ms. McCloskey through
contact within the family for character witnesses.
Attorney Meanix testified that he only spoke to Ms.
McCloskey on the day after sentencing. She
informed him that she knew sentencing had been the
prior day, but as there was the possibility of bad
weather, she had assumed it would be rescheduled
and did not attend. Attorney Meanix also testified
that after [Ap
Michael, stood up and said that if they testified, their
testimony would be the same.
[Appellant] testified that he had no contact
with Ms. McCloskey and that he did not discuss
contacting her with his son Jamie. Sandra
McCloskey testified that she knew [Appellant] as a
volunteer through her organization. Ms. McCloskey
testified that [Appellant] was always dependable,
consistent, pleasant, and overall a steady, good
v
arrest, she knew him for about three years and
would have testified on his behalf and as to his
character at sentencing, but she was never asked.
Upon questioning by the [PCRA c]ourt, Ms.
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McCloskey testified that she submitted a character
letter on behalf of [Appellant] for his sentencing for
stalking in Chester County in 2007. Th[e PCRA
c]ourt noted that it was aware of this character letter
particular case.
PCRA Court Opinion, 3/12/14, at 1-3.
Following the evidentiary hearing, the PCRA court entered an order
2014. On March 21, 2014, the PCRA court ordered Appellant to file a
concise statement of errors complained of on appeal, in accordance with
Pennsylvania Rule of Appellate Procedure 1925(b), within 21 days.
Appellant filed a timely Rule 1925(b) statement on April 1, 2014. In lieu of a
formal Rule 1925(a) opinion, the PCRA court filed a one-paragraph
memorandum that same day, indicating that it was relying on the reasoning
set forth in its prior March 12, 2014 opinion. See PCRA Court Memorandum,
4/1/14, at 1. Thereafter, on June 17, 2014, Attorney Quinn requested leave
to withdraw in accordance with Turner/Finley and their progeny. Appellant
On appeal, Attorney Quinn raises the following is
behalf.
[1.] [Whether Appellant] was denied the effective
assistance of counsel in that Attorney Meanix
failed to call Sandra McCloskey as a witness at
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Turner/Finley Brief at 3.
Commonwealth v.
Koehler ] scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the
Id. In order to be eligible for PCRA relief, a petitioner
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). ibility determinations,
Commonwealth
v. Spotz
Court applies a de novo
Id.
Commonwealth v.
Pitts, 981 A.2d 875 (Pa. 2009), our Supreme Court reiterated the level of
review necessary to secure permission to withdraw from representation
pursuant to Turner/Finley. The Pitts Court stated the following
requirements.
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1) - detailing
the nature and extent of his review;
2) -
each issue the petitioner wished to have
reviewed;
3) -
were meritless[.]
Id. at 876 (citation omitted).
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petition to withdraw; and (3) a
statement advising petitioner of the right to proceed pro se or by new
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007) (citation omitted).
[W]here counsel submits a petition and no-merit
letter that do satisfy the technical demands of
Turner/Finley, the court - trial court or this Court -
must then conduct its own review of the merits of
the case. If the court agrees with counsel that the
claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if
the claims appear to have merit, the court will deny
Id. (internal citation omitted).
Herein, we conclude that Attorney Q
complied with the requirements of Turner/Finley. Specifically, Attorney
Turner/Finley letter brief detailed the nature and extent of his
review. In preparing said filing, Attorney Quinn addressed, inter alia,
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s underlying claim that Attorney Meanix was ineffective for failing
to call
hearing, and determined that the issue lacked merit. Thereafter, Attorney
Quinn explained why the PCRA court properl
amended PCRA petition. Finally, as discussed, Attorney Quinn served
Appellant with a copy of his request to withdraw and advised Appellant that,
if he was permitted to withdraw, Appellant had the right to proceed pro se or
with pri
request for leave to withdraw from representation satisfied the constraints of
Turner/Finley. We must now conduct our own independent review as to
without merit.
Meanix rendered ineffective assistance of counsel by failing to call Sandra
Turner/Finley Brief at 3. Appellant avers that McCloskey would have
Id.
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
-determining process
(1) the
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underlying legal issu
Koehler, supra at 132, citing Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987). ounsel is presumed effective,
and to rebut that presumption, the PCRA petitioner must demonstrate that
Koehler, supra at 131 (citation omitted). Furthermore,
appellant fails to prove by a preponderance of the evidence any of the
Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009),
appeal denied, 990 A.2d 727 (Pa. 2010).
Upon careful review of the record,
Turner/Finley letter brief, and the applicable law, and in
iveness claim
merits no relief. The record establishes that Appellant has failed to satisfy
the first and third prongs of the aforementioned ineffectiveness test. See
Koehler, supra.
Specifically, Appellant has failed to establish that his ineffectiveness
Id.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en
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banc) (citation and quotation marks omitted), appeal denied, 93 A.3d 463
(Pa. 2014). Herein, Attorney Meanix testified at the January 22, 2014
evidentiary hearing, that he and Appellant discussed calling McCloskey as a
on,
-7. Attorney
part, [his] own belief that character witnesses deal better with hearing from
Id. Attorney Meanix further noted that
McCloskey telephoned him the day after the sentencing hearing, and
inquired as to when the hearing would be rescheduled. Id. at 7-8.
McCloskey, on the contrary, also testified at the evidentiary hearing and
averred that she never spoke with Attorney Meanix and was never informed
aring. Id. at 29.
elected not to believe McCloskey. PCRA Court Opinion, 3/12/14, at 4.
as to her facts, not credible as to her responses to the [PCRA c]ourt and
specifically not credible with regard to her testimony that she was never
Id. Upon review, we
ibility
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determinations. When
Commonwealth
v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). Accordingly,
ney Meanix was ineffective for not calling
McCloskey as a witness during the sentencing hearing lacks arguable merit.
Additionally, Appellant has also failed to establish that he suffered
prejudice as a result of Koehler, supra. o
demonstrate prejudice, appellant must show there is a reasonable
Commonwealth v. Michaud, 70 A.3d 862,
867 (Pa. Super. 2013) (citation omitted). Instantly, the record reveals that
prejudicial impact on Appellant, as the PCRA court acknowledged that it was
on at
character letter McCloskey
See PCRA Court Opinion, 3/12/14, at
5. O
petitioner] has not de
affected the outcome of the proceedings [pursuant to the third prong of the
Pierce test], the claim may be dismissed on that basis alone and the court
need not first determine whether the first and second prongs [of the test]
Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007).
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Based on the foregoing, we discern no error on the part of the PCRA
Accordingly, we
petition to withdraw.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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