Com. v. Spivey, C. ( 2014 )


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  • J.S52001/14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    Appellee          :
    :
    v.                      :
    :
    :
    CURTIS SPIVEY,                              :
    :
    Appellant         :     No. 1913 EDA 2012
    Appeal from the PCRA Order May 21, 2012
    In the Court of Common Pleas of Philadelphia County
    Criminal Division No(s).: CP-51-CR-0805781-2004
    BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.
    MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 23, 2014
    Appellant, Curtis Spivey, appeals pro se from the order entered in the
    Philadelphia County Court of Common Pleas dismissing his timely, first Post
    Conviction Relief Act1
    per curiam order,2 previously remanded for the PCRA court to conduct a
    Grazier hearing.3 The PCRA court has done so and has permitted Appellant
    *
    Former Justice specially assigned to the Superior Court.
    1
    42 Pa.C.S. §§ 9541-9546.
    2
    Order, 1913 EDA 2012 (Pa. Super. filed Sept. 6, 2012) (per curiam).
    3
    -conviction and
    appellate stages, an on-the record determination should be made that the
    Commonwealth v.
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    to proceed pro se in this appeal. Appellant argues: (1) the PCRA court erred
    in ignoring his request to act pro se in the underlying PCRA proceedings; and
    (2) he was denied access to discovery, which prevented him from pursing
    another issue on appeal                                     Finley letter4 was
    deficient. We affirm.
    5
    in August of 2006, at which he
    acted pro se,6 the jury found him guilty of murder in the first degree,7
    possessing an instrument of crime, and carrying a firearm on public streets
    or public property in Philadelphia.8    The trial court imposed an aggregate
    term of life imprisonment.
    Appellant took a counseled appeal. On November 24, 2008, this Court
    Glacken, 
    32 A.3d 750
    , 752 (Pa. Super. 2011) (quoting Commonwealth v.
    Grazier, 
    713 A.2d 81
    , 82 (Pa. 1998)).
    4
    See Commonwealth v. Turner, 
    544 A.2d 927
    (Pa. 1988);
    Commonwealth v. Finley, 
    550 A.2d 213
    (Pa. Super. 1988) (en banc).
    5
    The first trial, in December of 2005, was held before the Honorable M.
    Theresa Sarmina; the Commonwealth pursued the death penalty. The
    second trial was held before the Honorable Jeffrey P. Minehart, who also
    conducted the instant PCRA proceeding. The Commonwealth did not pursue
    the death penalty at the second trial. N.T. Pre-Trial Mot., 7/17/06, at 3.
    6
    The court appointed stand-by counsel, who was not counsel during the first
    trial, to assist Appellant.
    7
    18 Pa.C.S. § 2502(a).
    8
    18 Pa.C.S. §§ 907, 6108.
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    affirmed the judgment of sentence.9          On September 15, 2009, the
    appeal.
    On September 13, 2010, Appellant filed the instant, timely PCRA
    petition pro se. The petition alleged 105 instances of trial court, police, and
    prosecutorial error, as well as ineffectiveness of direct appeal counsel for
    failure to raise certain issues, including the validity of his waiver of counsel
    -
    31.   Appellant also averred that his discovery, letters, transcripts, and
    pictures were illegally taken from him.
    The PCRA court appointed Joseph Sco
    Appellant. Appellant then filed a pro se letter with the court, stating he was
    waiving his right to counsel and invoking his right to self-representation,.
    He also subsequently filed a pro se amended PCRA petition on September
    15, 2011.
    Finley letter with the
    PCRA court.    The Finley letter summarized that Appellant alleged (1) his
    9
    Commonwealth v. Spivey, 1376 EDA 2007 (unpublished memorandum
    Pa. Super. filed Nov. 24, 2008) (denying relief on claims that evidence was
    insufficient and trial court erred in admitting autopsy photographs). This
    Court initially remanded for the trial court to supplement the record with trial
    transcripts and autopsy photographs that were introduced as evidence at
    trial.    Commonwealth v. Spivey, 1376 EDA 2007 (unpublished
    memorandum Pa. Super. filed Apr. 30, 2008).
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    waiver of counsel at trial was not voluntary, intelligent, or knowing, and that
    he was incompetent to represent himself; (2) the trial court failed to provide
    tandby counsel at trial,
    inappropriate   remarks    during   opening     and    closing   arguments   and
    examination of witnesses; (6) the trial court acted with bias; and (7)
    appellate counsel was ineffective for failing to raise certain issues. Attorney
    Finley Letter, 12/8/11, at 2-
    lure to preserve
    them at trial or raise them on direct appeal.
    Appellant filed a pro se objection to the Finley letter and a
    supplemental objection to the Finley letter.10        Both averred that Attorney
    Finley letter was not valid by virtue of Appell
    right to proceed pro se.    However, Appellant simultaneously averred that
    counsel failed to comply with the Finley requirements, by failing to provide
    him a copy of the application to withdraw, advise him of his right to proceed
    pro se or with privately-retained counsel, and address all the issues in his
    10
    19, 2012,
    -4-
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    pro se PCRA petition.11
    On March 29, 2012, the PCRA court issued Pa.R.Crim.P. 907 notice of
    the court entered an order dismissing the petition,12 and then appointed
    another attorney to represent Appellant. Appellant subsequently filed a pro
    11
    copy of the Finley letter.
    12
    Previously in the instant appeal, this Court directed the PCRA court to
    supplement the record with
    petition. Order, 1913 EDA 2012 (Pa. Super. filed Nov. 8, 2013) (per
    curiam). The PCRA court did not provide a traditional order, but instead
    forwarded notes of testimony of a May 21, 2012 proceeding, the sum of
    which states:
    Court Crier: No. 13, Curtis Spivey [Appellant].
    The Court: The 907 was sent.
    The Court: So the petition is formally dismissed.
    (Proceedings concluded.)
    N.T. PCRA, 5/21/12, at 3. Attached to this transcript is a copy of the page
    Furthermore, we note that on May 22, 2012, the day after the dismissal of
    the petition, the court issued a second Rule 907 notice.
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    se notice of appeal13 and later a petition to waive counsel and proceed pro
    se.
    On September 6, 2012, this Court, by per curiam order, remanded this
    case to the PCRA court to conduct a Grazier hearing.        The court did so
    approximately one year later, on August 30, 2013, and entered an order the
    same day permitting Appellant to proceed pro se in this appeal. The PCRA
    court also filed an opinion.
    After the Grazier hearing and return of this case to this Court,
    Appellant filed at least eight pro se petitions with this Court. In response,
    this Court issued two per curiam orders: one on November 8, 2013,
    directing the PCRA court to supplement the record with transcripts and
    documents requested by Appellant, and one on January 28, 2014, directing
    our Prothonotary to provide the recently-acquired notes of testimony to
    Appellant. Finally, Appellant filed a pro se appellate brief on April 4, 2014,
    and a supplemental appellate brief on May 27th.14
    In his initial brief, Appellant presents one issue for our review:
    pro se in
    13
    Although Appellant filed the notice of appeal pro se while represented by
    counsel, we note the notice of appeal was filed within the thirty-day period
    under Pa.R.A.P. 903(a). See Pa.R.A.P. 903(a) (stating appeal shall be filed
    within thirty days after entry of order from which appeal is taken);
    Commonwealth v. Jette, 
    23 A.3d 1032
    , 1044 (Pa. 2011) (reiterating there
    is no right to hybrid representation).
    14
    The Commonwealth has filed an a
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    ppellant requests
    relief in the form of a Grazier hearing to determine whether he may proceed
    pro se
    for not holding a hearing    that the issues in his pro se PCRA petition were
    waived or meritless
    Grazier
    We note the relevant standard of review:
    We review an order dismissing a petition under the PCRA
    in the light most favorable to the prevailing party at the
    PCRA level. This review is limited to the findings of the
    PCRA court and the evidence of record. We will not disturb
    a PCRA court's ruling if it is supported by evidence of
    record and is free of legal error. . . .
    Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1183 (Pa. Super. 2012)
    (citations omitted), appeal denied, 
    64 A.3d 631
    (Pa. 2013).       Furthermore,
    we note:
    To plead and prove ineffective assistance of counsel a
    petitioner must establish: (1) that the underlying issue has
    arguable merit; (2) counsel's actions lacked an objective
    reasonable basis; and (3) actual prejudice resulted from
    counsel's act or failure to act.
    
    Id. at 1189-90
    (citation omitted).
    While this Court previously remanded for the PCRA court to conduct a
    Grazier hearing to determine whether Appellant may proceed pro se in the
    instant appeal, his main issue now is whether the court erred in not
    allowing him to act pro se in the underlying PCRA proceedings. The sum
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    for a Grazier
    The PCRA court opined:
    proceed pro se in the PCRA proceedings], no relief is due .
    . . because he demonstrated by filing a pro se PCRA
    petition that contained approximately 100 repetitive and
    vaguely worded issues that were either waived or patently
    lacking in merit that he was incapable of representing
    himself during the PCRA process without causing due and
    unnecessary delay and confusion. In Commonwealth v.
    Staton, 
    12 A.3d 277
    , 2[7]9 (Pa. 2010), our Supreme
    Court stated that when self-representation will lead to
    defendant is properly denied the right to represent himself.
    ...
    PCRA Ct. Op., 9/5/13, at 3 (unpaginated).
    We find, however, that Appellant ignores or overlooks the fact that
    in fact pro se                 pro se PCRA petition and supplemental petition
    were still before the PCRA court to consider, as well as his objection to the
    Finley letter and supplemental objection to the Finley letter. Despite the
    PCRA court to determine whether Appellant may litigate his PCRA petition
    pro se.15
    supplemental brief      that he was not provided discovery, transcripts, and
    other documents necessary to prepare a PCRA petition and an appellate
    15
    Commonwealth v. Doty, 
    48 A.3d 451
    , 456 (Pa. Super. 2012).
    -8-
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    brief. He avers that
    16
    whether
    Finley letter failed to address many of his pro se issues
    and whether the PCRA court erred in dismissing his petition because
    Finley                                                    -14.
    We hold no relief is due. Appellant fails to explain what information is
    missing, and why or how the information can help him overcome the PCRA
    [Appellant], who represented himself at trial, either did not preserve them at
    trial or was precluded from raising them because he represented himself at
    trial and thus[ ] could not raise his own ineffectiv           See PCRA Ct. Op.
    relief.
    Order affirmed.
    16
    The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)
    statement, and Appellant did not file one after taking the instant appeal.
    Instead, Appellant had filed a pro se
    informing the PCRA court that he wished to proceed pro se. Obviously, this
    filing was improper, as the PCRA court had not ruled on his PCRA petition
    and no notice of appeal had been filed.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/23/2014
    - 10 -
    

Document Info

Docket Number: 1913 EDA 2012

Filed Date: 9/23/2014

Precedential Status: Precedential

Modified Date: 10/30/2014