Com. v. Pulliam, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
STEPFON L. PULLIAM
Appellant No. 963 WDA 2015
Appeal from the PCRA Order May 27, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002790-2013
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 1, 2016
Appellant, Stepfon L. Pulliam, appeals pro se from the May 27, 2015
order dismissing 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.
We recount the procedural history of this case, as contained in the
certified record, as follows. By criminal complaint filed July 27, 2013, the
Erie Bureau of Police charged Appellant with one count each of burglary,
indecent assault, rape, aggravated assault, simple assault, and sexual
assault, in connection with an incident that occurred on that same day
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involving an encounter with his former girlfriend at her residence.1 On
January 8, 2014, Appellant entered a guilty plea to one count each of simple
assault and sexual assault. On February 6, 2014, Appellant filed a petition
to withdraw his guilty plea, which the trial court granted on February 24,
2014. On May 1, 2014, Appellant re-entered a guilty plea to the simple
assault and sexual assault counts.2 On August 15, 2014, the trial court
sentenced Appellant to an aggregate term of 72 to 144 months’
incarceration.3 The trial court also determined Appellant to be a sexually
violent predator (SVP) and imposed lifetime reporting requirements under
the Sexual Offender Registration and Notification Act, 42 Pa.C.S.A.
§§ 9799.10-9799.41. No post-sentence motion or direct appeal was filed.
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1
18 Pa.C.S.A. §§ 3502(a)(1), 3126(a)(2), 3121(a)(1), 2702(a)(1),
2701(a)(1), and 3124.1, respectively.
2
At the same time, Appellant entered a guilty plea to two counts, i.e.,
loitering and prowling, 18 Pa.C.S.A. § 5506, and summary criminal mischief,
18 Pa.C.S.A. § 3304, at docket CP-25-CR-0002728, involving a separate
earlier incident at his former girlfriend’s residence. Appellant’s subject PCRA
petition does not pertain to these convictions.
3
Specifically, the trial court imposed a term of 60 to 120 months’
incarceration on the sexual assault count, and a consecutive 12 to 24
months’ incarceration on the simple assault count. The trial court also
imposed a concurrent 4 to 12 months’ incarceration on the loitering and
prowling count at docket CP-25-CR-0002728.
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On March 20, 2015, Appellant filed a timely PCRA petition. 4 On March
24, 2015, the PCRA court appointed counsel to represent Appellant. On April
29, 2015, counsel filed a petition to withdraw as attorney for Appellant
together with a no-merit letter 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. On May 8, 2015, the
PCRA court issued a notice, pursuant to Pennsylvania Rule of Appellate
Procedure 907(d), of its intent to dismiss Appellant’s PCRA petition without a
hearing. On May 11, 2015, the PCRA court granted counsel’s petition to
withdraw. The PCRA court issued an order dismissing Appellant’s PCRA
petition on May 28, 2015. Appellant filed a motion for reconsideration of the
PCRA court’s dismissal without a hearing on June 16, 2015, averring the
record did not reflect that the PCRA court issued a Rule 907 notice of intent.
At the same time, Appellant filed a timely notice of appeal.5
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4
On February 12, 2015, Appellant filed a “Motion for Withdrawal of Counsel
Inter Alia Ineffective Assistance of Counsel,” which the trial court denied as
moot on February 17, 2015. Additionally, on February 26, 2015, Appellant
filed a “Motion to Modify and Reduce Sentence,” which the trial court denied
as untimely on March 3, 2015. We note, in neither instance did the trial
court treat Appellant’s filings as a PCRA petition, or appoint counsel to
represent Appellant. See Commonwealth v. Jerman, 762 A.2d 366, 368
(Pa. Super. 2000) (noting“[t]here is no requirement that a PCRA petition be
on any particular form,” and recognizing that post-sentence filings
requesting relief cognizable under the PCRA should be treated as PCRA
petitions).
5
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
(Footnote Continued Next Page)
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On appeal, Appellant raises the following issue for our consideration.
1. Whether trial counsel’s performance deficiency
and [sic] rendered ineffective assistance of counsel
when failing to conduct an adequate factual pre-trial
investigation into the alleged victim’s known
willingness to cooperate with the Commonwealth’s
case against Appellant, which would be evidence and
grounds for the squashing [sic] of the information
and prosecution of the case against Appellant, which
if proven true would render the plea invalid as not
being voluntarily or intelligently entered, and
rendered Appellant’s ineffective assistance of counsel
claim meritorious, and rendered in a layered claim
PCRA counsel’s ineffectiveness for failure to raise
trial counsel’s ineffectiveness.
Appellant’s Brief at 4.6
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(Footnote Continued)
Procedure 1925(b). The PCRA court issued a memorandum opinion in
accordance with Rule 1925(a), wherein it referenced its May 8, 2015,
opinion and notice of intent as containing the reasons for its decision.
6
Although not contained in his questions presented on appeal, Appellant’s
brief and supplemental brief contain cursory arguments alleging
ineffectiveness of trial counsel relative to the trial court’s SVP determination
and relative to trial counsel’s failure to file a post-sentence motion
challenging discretionary aspects of Appellant’s sentence. We note that
neither issue was contained in Appellant’s pro se PCRA petition or raised by
PCRA counsel before the PCRA court. Accordingly, these issues are waived
and cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a)
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal”); see also Commonwealth v. Roney, 79 A.3d
595, 611 (Pa. 2013) (finding a PCRA claim of ineffectiveness of trial counsel
is waived where it had not been raised in the appellant’s PCRA petition or
before the PCRA court), cert. denied, 135 S. Ct. 56 (2014).
Appellant also claims PCRA counsel was ineffective. Appellant’s Brief
at 12-13. However, Appellant did not raise an ineffectiveness of PCRA
counsel claim before the PCRA court in a response to its Rule 907 notice of
intent to dismiss or in a response to PCRA counsel’s motion to withdraw and
Turner/Finley no-merit letter. Thus, similarly, Appellant may not raise this
(Footnote Continued Next Page)
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Appellant’s issue implicates the following standards that guide our
review.
Our review of a PCRA court’s decision is limited to
examining whether the PCRA court’s findings of fact
are supported by the record, and whether its
conclusions of law are free from legal error. We view
the findings of the PCRA court and the evidence of
record in a light most favorable to the prevailing
party. With respect to the PCRA court’s decision to
deny a request for an evidentiary hearing, or to hold
a limited evidentiary hearing, such a decision is
within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion. The
PCRA court’s credibility determinations, when
supported by the record, are binding on this Court;
however, we apply a de novo standard of review to
the PCRA court’s legal conclusions.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal
quotation marks and citations omitted). In this case, Appellant alleges that
guilty plea counsel was ineffective for failing to investigate a Commonwealth
witness, the victim in this matter. Appellant’s Brief at 11.
In order to obtain relief under the PCRA based on a
claim of ineffectiveness of counsel, a PCRA petitioner
must satisfy the performance and prejudice test set
forth in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
Pennsylvania, we have applied the Strickland test
by requiring a petitioner to establish that: (1) the
underlying claim has arguable merit; (2) no
_______________________
(Footnote Continued)
issue for the first time on appeal. See Commonwealth v. Henkel, 90 A.3d
16, 20 (Pa. Super. 2014) (holding, after exhaustively reviewing our Supreme
Court’s jurisprudence, that “claims of PCRA counsel’s ineffectiveness may
not be raised for the first time on appeal.” appeal denied, 101 A.3d 785 (Pa.
2014).
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reasonable basis existed for counsel’s action or
failure to act; and (3) the petitioner suffered
prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable
probability that the result of the proceeding would
have been different. Commonwealth v. Pierce,
567 Pa. 186, 786 A.2d 203, 213 (2001). Counsel is
presumed to have rendered effective assistance,
and, if a claim fails under any required element of
the Strickland test, the court may dismiss the claim
on that basis. Commonwealth v. Ali, 608 Pa. 71,
10 A.3d 282, 291 (2010).
Commonwealth v. Vandivner, 130 A.3d 676, 680 (Pa. 2015).
Allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused the defendant to
enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel,
the voluntariness of the plea depends on whether
counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
Commonwealth v. Kelley, ---A.3d---, 2016 WL 1072107, at *3 (Pa. Super.
2016) (internal quotation marks and citations omitted). “To prove prejudice,
appellant must prove he would not have pled guilty and would have
achieved a better outcome at trial.” Commonwealth v. Fears, 86 A.3d
795, 806-807 (Pa. 2014) (internal quotation marks and citation omitted).
The failure to investigate presents an issue of
arguable merit where the record demonstrates that
counsel did not perform an investigation. It can be
unreasonable per se to conduct no investigation into
known witnesses. Importantly, a petitioner still must
demonstrate prejudice. To demonstrate prejudice
where the allegation is the failure to interview a
witness, the petitioner must show that there is a
reasonable probability that the testimony the witness
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would have provided would have led to a different
outcome at trial.
In this respect, a failure to investigate and
interview a witness claim overlaps with declining to
call a witness since the petitioner must prove: (i) the
witness existed; (ii) the witness was available to
testify; (iii) counsel knew of, or should have known
of, the existence of the witness; (iv) the witness was
willing to testify; and (v) the absence of the
testimony was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 638-639 (Pa. Super. 2014)
(internal quotation marks and citations omitted), appeal denied, 109 A.3d
679 (Pa. 2015).
Appellant’s contention in this case is that his guilty plea was not
entered knowingly, intelligently, and voluntarily because counsel failed to
interview or to otherwise investigate the victim in this matter to ascertain
whether she was willing to cooperate with the prosecution. Appellant’s Brief
at 12.
In this case, Appellant entered a plea of guilty on the
advice of Trial Counsel, absent the duty and
responsibility of Trial Counsel to investigate whether
the Commonwealth had the sufficiency of evidence
to prosecute Appellant on the possibility that the
alleged victim was not intending to cooperate as a
witness/alleged victim to aid the prosecution of the
criminal charges.
Id. Significantly, Appellant does not contend that the victim had any
exculpatory information. Rather, Appellant contends that if the victim was
not willing to cooperate, he would not have pled guilty, and would instead
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have proceeded to trial on the hope she would not testify and the
Commonwealth would not have been able to sustain its burden. Id. at 13-
14.
Appellant claims it was trial counsel’s duty to determine whether the
Commonwealth’s primary witness was unwilling to testify because the
absence of her testimony would have been beneficial to Appellant. Cf.
Pander, supra. Our Supreme Court noted it has “never held that trial
counsel is obligated to interview every Commonwealth witness prior to trial.”
Commonwealth v. Washington, 927 A.2d 586, 598 (Pa. 2007). This is
especially true where such “an independent interview … was unnecessary
and, in fact, would have proved fruitless. See, e.g., Commonwealth v.
Smith, 416 A.2d 986, 987–988 (Pa. 1980) (holding that independent
interview is unnecessary if counsel could conclude prior to interview that
witness’ testimony would be of no value or damage defense’s case).” Id.In any event, Appellant’s bald factual assertion that the victim in this
case was unwilling to testify, is completely unsupported. Appellant
references no source for his information and his PCRA petition contained no
affidavits or other evidence supporting his factual claims. Furthermore,
Appellant claims he knew of the victim’s purported reluctance to testify
which he avers was the reason he withdrew his initial guilty plea.
Appellant’s Brief at 6. Accordingly, Appellant has not demonstrated how his
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subsequent plea, when he was possessed of that purported knowledge, was
not knowingly, intelligently, and voluntarily entered.
Additionally, our review of the record, including the written and oral
guilty plea colloquies, and Appellant’s responses, leads us to conclude
Appellant’s plea was knowingly and voluntarily entered. Specifically, during
his guilty plea, Appellant acknowledged as follows.
THE COURT: Do you feel like anyone is
pressuring you or forcing you to admit your guilt
here today?
[APPELLANT]: No.
THE COURT: Do you feel like you are
giving up any valid defenses?
[APPELLANT]: No.
…
THE COURT: Have you had enough time to
think about what to do in your case?
[APPELLANT]: Yes.
THE COURT: Are you satisfied with the
legal representation you’ve received?
[APPELLANT]: Yes.
N.T., 1/28/14, at 12-13.
Accordingly, we conclude Appellant’s underlying claim lacks arguable
merit, and that he failed to establish he suffered any prejudice from plea
counsel’s performance. See Vandivner, supra; Fears, supra. We
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therefore affirm the PCRA court’s May 27, 2015 order dismissing Appellant’s
PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2016
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