Com. v. Simon, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TYUAN SIMON :
:
Appellant : No. 3204 EDA 2017
Appeal from the PCRA Order September 12, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007840-2012
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 26, 2019
Appellant, Tyuan Simon, appeals from the order entered in the
Montgomery County Court of Common Pleas, which denied Appellant’s first
petition brought under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
During a grand jury hearing on July 18, 2012, Christopher Carbone testified
another prison inmate had told Mr. Carbone that Appellant had hired the
inmate to kill Victim. Subsequently, the Commonwealth charged Appellant
with first-degree murder and related offenses arising out of the shooting
death of Victim. Appellant proceeded to a multi-day jury trial on June 24,
2013. At trial, Mr. Carbone recanted his grand jury testimony, indicating,
inter alia: (i) his attorney had coerced him to testify at the grand jury
1 42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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hearing, because he led Mr. Carbone to believe the Commonwealth would
pursue a lesser sentence against Mr. Carbone in his pending criminal case if
he testified; and (ii) after the grand jury hearing, someone had threatened
to harm Mr. Carbone and his family if he testified against Appellant at trial.
On June 27, 2013, a jury convicted Appellant of first-degree murder,
solicitation to commit murder, and conspiracy to commit murder. The court
sentenced Appellant on September 20, 2013, to life without the opportunity
of parole (“LWOP”). This Court affirmed the judgment of sentence on
December 12, 2014, and our Supreme Court denied allowance of appeal on
May 13, 2015. See Commonwealth v. Simon, 116 A.3d 686 (Pa.Super.
2014) (unpublished memorandum), appeal denied, 632 Pa. 662, 116 A.3d
604 (2015).
On May 3, 2016, Appellant timely filed his first and current pro se
PCRA petition. Appellant subsequently retained PCRA counsel. Appellant
filed an amended PCRA petition on May 4, 2017, and a supplemental PCRA
petition on July 25, 2017, in which Appellant raised claims of ineffective
assistance of trial and appellate counsel. On August 7, 2017, the PCRA court
issued Rule 907 notice. On August 17, 2017, Appellant filed a “Motion to
Continue,” requesting the court to allow Appellant additional time to obtain
an affidavit from Mr. Carbone regarding his trial testimony. The court
denied Appellant’s motion on August 18, 2017. The court, however, allowed
Appellant to present an after-discovered evidence claim in his response to
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the Rule 907 notice and extended the time for filing a Rule 907 notice
response. On September 11, 2017, Appellant filed a response to Rule 907
notice. In the September 11th filing, Appellant alleged Mr. Carbone recanted
his trial testimony that he had been threatened or coerced to retract his
grand jury testimony. Appellant appended to his September 11 th filing an
affidavit of Mr. Carbone. On September 13, 2017, the PCRA court dismissed
Appellant’s PCRA petition.
On September 29, 2017, Appellant timely filed a pro se notice of
appeal and request for counsel. The PCRA court appointed new counsel on
October 30, 2017. The PCRA court ordered Appellant on November 2, 2017,
to file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b); Appellant failed to comply. Nevertheless, the PCRA court issued a
Rule 1925(a) opinion on December 1, 2017. On December 8, 2017, counsel
sent a letter to the PCRA court explaining he did not file a Rule 1925(b)
statement on behalf of Appellant, because counsel believed he had a
potential conflict of interest in representing Appellant. Despite his perceived
conflict of interest, counsel filed in this Court a brief on behalf of Appellant.
We returned this matter briefly to the PCRA court with instructions for
the court to appoint new counsel for Appellant and order counsel to file a
Rule 1925(b) statement. We gave the PCRA court 30 days after receipt of
Appellant’s compliant Rule 1925(b) statement to prepare a responsive
opinion, pursuant to Rule 1925(a), and transmit the certified record to this
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Court along with all new documents certified as part of that record. We
have received the necessary documents as part of the certified record and
now proceed with the appeal.
Appellant raises the following issues for our review:
WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBJECT TO THE PROSECUTION’S USE OF
UNSUBSTANTIATED CLAIMS OF WITNESS INTIMIDATION
BY APPELLANT[?]
WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBJECT TO OR PLACE ON THE RECORD THAT
THE COMMONWEALTH USED ITS PEREMPTORY JURY
STRIKES IN A RACIALLY DISCRIMINATORY MANNER[?]
WHETHER APPELLANT’S [DIRECT APPEAL] COUNSEL WAS
INEFFECTIVE FOR FAILING TO PROPERLY SPECIFY WHAT
ELEMENTS OF THE OFFENSE HAD NOT BEEN MET IN THE
[RULE] 1925(B) STATEMENT OF ERRORS[?]
WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL
BASED UPON DUE PROCESS VIOLATIONS WHEN AFTER
DISCOVERED EXCULPATORY EVIDENCE WHICH WAS
UNAVAILABLE AT THE TIME OF TRIAL[?]
(Appellant’s Brief at 4).2
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
2Appellant also claims the PCRA court should have conducted an evidentiary
hearing before it dismissed his PCRA petition. (See Rule 1925(b)
Statement, filed December 20, 2018).
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to the findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such
deference, however, to the court’s legal conclusions. Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will
not be disturbed if the certified record supports the court’s findings.
Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal
denied, 597 Pa. 715, 951 A.2d 1163 (2008). Further, a petitioner is not
entitled to a PCRA hearing as a matter of right; the PCRA court can decline
to hold a hearing if there is no genuine issue concerning any material fact,
the petitioner is not entitled to PCRA relief, and no purpose would be served
by any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338
(Pa.Super. 2012); Pa.R.Crim.P. 907.
After a thorough review of the record, the briefs of the parties,
applicable law, and the well-reasoned opinion of the Honorable Wendy
Demchick Alloy, we conclude Appellant’s issues merit no relief. The PCRA
court opinion discusses and properly disposes of the questions presented.
(See PCRA Court Opinion, filed January 8, 2019, at 7-35) (finding: (3) trial
evidence was sufficient to allow jury to convict Appellant of first-degree
murder, conspiracy to commit murder, and solicitation to commit murder;
underlying claim that evidence was not sufficient to convict Appellant lacked
arguable merit; therefore, Appellant’s claim direct appeal counsel rendered
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ineffective assistance fails; (1) at trial, Commonwealth did not accuse
Appellant of witness intimidation; Mr. Carbone repeatedly blurted out that he
feared for his life and lives of his family, but his statements were not
responsive to any questions Commonwealth posed; exchange between
Commonwealth and Mr. Carbone made clear Commonwealth did not intend
to or expect Mr. Carbone to testify as he did; Commonwealth noted Mr.
Carbone’s demeanor became erratic when Appellant’s brother entered
courtroom; Mr. Carbone at no time stated, however, that Appellant or
anyone associated with Appellant threatened him or threatened to harm his
family; no reasonable pretrial investigation could have enabled trial counsel
to anticipate Mr. Carbone’s sudden outbursts; further, trial counsel elicited
from Mr. Carbone on cross-examination that Mr. Carbone did not believe
Appellant paid Bruce Woods to kill anyone, which supported Appellant’s
defense; (4) statements in Mr. Carbone’s affidavit are consistent with his
trial testimony; moreover, even if Mr. Carbone had recanted his trial
testimony, his testimony cannot be expunged from record and would remain
relevant and admissible to test Mr. Carbone’s veracity at new trial; new trial
would not rectify alleged harm Mr. Carbone’s testimony caused at first trial;
facts before jury at new trial would not be materially different from facts
adduced at first trial, and new trial jury would likely also learn Mr. Carbone
had changed his testimony because he feared retaliation; further, exchange
between prosecutor and Mr. Carbone at first trial did not prejudice Appellant
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in comparison to likely exchange between Commonwealth and Mr. Carbone
at retrial; (2) in his PCRA petition, Appellant failed to plead sufficient facts
or point to any direct evidence to prove purposeful discrimination on behalf
of Commonwealth in selecting jury; therefore, Appellant’s discriminatory jury
selection claim fails; based on foregoing, evidentiary hearing was
unnecessary, because Appellant’s PCRA petition raised no genuine issues of
material fact and hearing would have served no purpose). The record
supports the PCRA court’s rationale. Accordingly, we affirm on the basis of
the PCRA court opinion.
Order affirmed.
Judge Platt did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/19
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Circulated 02/13/2019 01:52 PM