Com. v. Plummer, W. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM PLUMMER :
:
Appellant : No. 1623 EDA 2021
Appeal from the PCRA Order Entered July 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003690-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PLUMMER :
:
Appellant : No. 2070 EDA 2021
Appeal from the PCRA Order Entered July 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015155-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PLUMMER :
:
Appellant : No. 262 EDA 2022
Appeal from the PCRA Order Entered July 8, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003689-2014
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
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MEMORANDUM BY PANELLA, P.J.: FILED MARCH 16, 2023
William Plummer appeals, pro se, from the orders dismissing his petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 See 42
Pa.C.S.A. §§ 9541-9546. Plummer raises numerous ineffective assistance of
counsel claims. We affirm.
This Court previously set forth the underlying facts as follows:
On September 29, 2013, at around 1:00 a.m., Ronald Elliot left
his girlfriend, Kandis Fowler’s, home at 3601 Conshohocken
Avenue and went to the apartment building’s parking lot.
[Plummer] and two other men, holding fake police badges,
jumped out of the bushes and yelled “Freeze, Police.” Elliot ran
out of the parking lot and across the street as the three men
chased him. [Plummer] stopped pursuing Elliot and acted as a
lookout standing on the sidewalk on the parking lot side of the
street while the other two men caught Elliot across the street.
After the two men hit Elliot four or five times in the head with a
firearm, cutting him on the head, the two men took Elliot’s watch,
money and car keys. The men joined back up with [Plummer] and
all three men ran to the parking lot. Elliot saw [Plummer] drive off
in Fowler’s Ford Expedition.
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1 Plummer filed timely appeals at 1623 EDA 2021 and 2070 EDA 2021. At 262
EDA 2022, Plummer filed a pro se notice of appeal from the July 8, 2021 order
on January 11, 2022, which would make the appeal untimely. However, the
PCRA court docket does not indicate that the July 8, 2021 order was served
on Plummer or the date of service of the order. See Pa.R.Crim.P. 114(B)(1)
(“A copy of any order or court notice promptly shall be served on … the party
if unrepresented.”); Pa.R.Crim.P.114(C)(2)(c) (requires the criminal docket
entries to include “the date of service of the order”); see also Pa.R.Crim.P.
907(4) (providing that a PCRA court order dismissing a petition without a
hearing “shall be filed and served as provided in Rule 114.”). Therefore, we
consider the appeal at 262 EDA 2022 to be timely. Furthermore, because
these appeals have a substantially similar procedural history and raise the
same legal questions, we consolidate them sua sponte and will consider them
together.
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On February 5, 2014, after [Plummer] had been arrested and
charged with [the] robbery of Elliot, Elliot received multiple phone
calls from [Plummer]. [Plummer] threatened Elliot, explaining that
if Elliot attended the next court date [Plummer] was going to
firebomb the homes of Elliot’s mother, girlfriend, and grandparent
and kill Elliot….
On February 9[,] 2014, Valerie and Russell Fowler, Kandis Fowler’s
parents, were living in a row home on Washington Lane. At about
4:00 a.m., Valerie Fowler heard a “bang” and smelled smoke.
Russell Fowler went downstairs and saw a small fire in the back
yard. After the fire was extinguished, Russell Fowler noted that
the first floor back window was broken and saw a bottle with a
wick in it in the back yard.
Detective Timothy Brooks of the Philadelphia Police’s Bomb
Disposal Unit and an expert in arson explosives arrived at the
Fowler’s home on Washington Lane shortly after the fire was
extinguished. Outside the back of the house, Detective Brooks
observed two bottles with wicks in them, one intact and the other
shattered, which he believed to be Molotov cocktails. Detective
Brooks observed strike marks on the back window and a broken
bottle at the bottom of the basement steps that indicated that a
Molotov cocktail had struck the house and fallen to the ground.
The intact bottle contained liquid and a cloth wick, which smelled
of gasoline. Detective Brooks recovered the bottles, wicks, and
liquid.
On February 9, 2014, Detective Kevin Sloan requested that
Philadelphia prison authorities search [Plummer’s cell]. The prison
authorities recovered a cell phone in [Plummer’s] cell. According
to Cricket Communications’ records, the cell phone recovered
from [Plummer’s] cell had been used to call Elliot four times on
February 5, 2014.
[Plummer] testified on his own behalf. [He] asserted that in the
first week of September 2013, Elliot gave [Plummer] $15,000 to
purchase drugs for him. [Plummer] kept the money but did not
purchase the drugs. [Plummer] asserted that on September 29,
2013, he was not on Conshohocken Avenue but instead was in
Norristown. [Plummer] explained that he was unable to run
because he was shot many years before. [Plummer] admitted that
he had called Elliot but claimed the call was to arrange to return
Elliot’s money in exchange for Elliot not appearing at trial.
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[Plummer] was charged with numerous crimes at the above-
captioned docket numbers. Ultimately, a jury convicted him of one
or more counts each of conspiracy, aggravated assault, robbery,
robbery of a motor vehicle, arson, risking a catastrophe,
intimidation of a victim, retaliation against a victim, and
contraband (non-controlled substance). [Plummer] received an
aggregate sentence of thirty to sixty years of incarceration. On
direct appeal, this Court affirmed, and our Supreme Court denied
[Plummer]’s petition for allowance of appeal. See
Commonwealth v. Plummer, 153 A.3d 1110 (Pa. Super. 2016)
(unpublished memorandum), appeal denied, 159 A.3d 938 (Pa.
2016).
[Plummer] filed a timely pro se PCRA petition, and counsel was
appointed. Counsel filed an amended petition, including only four
of the many claims that [Plummer] raised in his pro se filings.
Displeased by the omissions, [Plummer] applied for the
appointment of new counsel. [Plummer] also filed a letter in which
he contended that PCRA counsel had a duty to pursue each and
every claim that [Plummer] wished to raise, or to file “a hybrid
[Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc) letter” explaining why there was no merit in the claims he
chose not to include in the amended petition. Citing [Plummer’s]
lack of faith in his representation, counsel sought to withdraw and
have the PCRA court appoint new counsel or hold a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.
1998)…. For reasons not apparent from the certified record, the
PCRA court denied the request without conducting a Grazier
hearing.
[Plummer] next filed a motion to proceed pro se, which the PCRA
court addressed at the outset of the hearing it had scheduled on
the claims raised in counsel’s amended petition. [Plummer]
informed the court that he did not want to represent himself, but
rather he desired to have counsel pursue all of the claims that he
wished to raise. The PCRA court deferred addressing that issue,
instead having PCRA counsel conduct the questioning of witnesses
in connection with the issues raised in the counseled petition. At
the end of the hearing, the PCRA court scheduled another date for
[Plummer] to present additional witnesses.
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In between hearings, [Plummer] filed another motion to proceed
pro se, citing “irreconcilable differences and the lack of
communication on strategy.” At the second PCRA hearing, the
PCRA court did not conduct a Grazier hearing or otherwise
address [Plummer’s] renewed request for self-representation.
Instead, counsel continued to represent [Plummer] at the second
hearing, presenting and cross-examining witnesses. Following the
close of evidence and the arguments of counsel, the PCRA court
invited [Plummer] to state “what it is that you want preserved for
the record[.]” [Plummer] indicated, inter alia, that he wanted the
pro se PCRA claims that counsel omitted from the amended
petition to be “exhausted.” At that point, the PCRA court
conducted a colloquy to determine whether [Plummer] wished to
make a knowing and voluntary waiver of his right to counsel. The
PCRA court [dismissed the amended PCRA petition. Further, the
PCRA court] concluded that [Plummer] desired to proceed pro se
on appeal, and ultimately entered an order allowing counsel to
withdraw.
Commonwealth v. Plummer, 2042 EDA 2018 (Pa. Super. filed Apr. 1, 2020)
(unpublished memorandum at 2-5) (citations and footnote omitted).
On appeal, this Court vacated the order, finding that the PCRA court
erred in failing to conduct a Grazier hearing when the court was first
presented the issue of Plummer’s desire to raise all of his PCRA claims.
Accordingly, this Court remanded for Plummer to file a pro se amended PCRA
petition, raising the claims he wished the PCRA court to resolve. See id.(unpublished memorandum at 15-16).
On remand, Plummer filed several amended PCRA petitions, raising
ineffective assistance of trial, appellate, and PCRA counsel claims. The PCRA
court issued a Pa.R.Crim.P. 907 notice. Plummer filed a response. Thereafter,
the PCRA court dismissed Plummer’s petition. These timely appeals followed.
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On appeal, Plummer raises a voluminous amount of ineffectiveness
claims regarding his trial, appellate, and PCRA counsel, and claims of error by
the PCRA court. See Appellant’s Brief at 5-6 (raising 8 issues); Appellant’s
Supplemental Brief at 4-9 (raising 22 issues labeled A through V). In essence,
Plummer argues that (1) trial counsel and appellate counsel were ineffective
for failing to challenge the trial court’s jury instruction as to criminal
conspiracy; (2) trial counsel was ineffective for failing to file a motion to
suppress the cell phone found in his prison cell; (3) trial counsel was
ineffective for failing to investigate a corroborating witness who was
Plummer’s cellmate; (4) trial counsel was ineffective for failing to challenge
testimony or evidence relating to the cellphone found in his prison cell; (5)
trial counsel was ineffective for not seeking discovery from the Commonwealth
regarding his character; (6) PCRA counsel was ineffective for failing to raise
numerous claims; and (7) the PCRA court erred in failing to order him to file
a Rule 1925(b) concise statement so that it could more fully address his
claims. See Appellant’s Brief at 12-18; Appellant’s Supplemental Brief at 10-
51.
Our standard of review regarding a PCRA court’s order “is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super.
2017). “The PCRA court’s findings will not be disturbed unless there is no
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support for the findings in the certified record.” Commonwealth v. Garcia,
23 A.3d 1059, 1061 (Pa. Super. 2011) (citation omitted).
Further, to succeed on an ineffectiveness claim, Plummer must
demonstrate by a preponderance of evidence that “(1) the underlying claim
has arguable merit; (2) counsel had no reasonable basis for his or her action
or inaction; and (3) the petitioner suffered prejudice as a result of counsel’s
action or inaction.” Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)
(citation omitted). Counsel is presumed to be effective, and the burden is on
Plummer to prove otherwise. See Commonwealth v. Simpson, 66 A.3d 253,
260 (Pa. 2013). A failure to satisfy any prong of the test for ineffectiveness
will require rejection of the claim. See Commonwealth v. Montalvo, 244
A.3d 359, 368 (Pa. 2021).
To be eligible for relief on a claim that appellate or PCRA counsel was
ineffective, the petitioner “must meet all three prongs of the . . . test for
ineffectiveness” for each counsel. Commonwealth v. Chmiel, 30 A.3d 1111,
1128 (Pa. 2011) (citation omitted). “A failure to satisfy any of the three prongs
of the [ineffectiveness] test requires rejection of a claim of ineffective
assistance of trial counsel, which, in turn, requires rejection of a layered claim
of ineffective assistance of” appellate or PCRA counsel. Id. (citation omitted).
First, Plummer claims that trial and direct appeal counsel were
ineffective for failing to argue that the court improperly instructed the jury in
response to a jury question on the criminal conspiracy charge. See Appellant’s
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Brief at 12-14. More specifically, Plummer argues that trial counsel was
ineffective for failing to object to the instruction, baldly claiming that the
instruction relieved the Commonwealth of its burden to prove each element
of the crimes charged beyond a reasonable doubt. See id. at 12. Plummer
asserts that the trial court failed to explain to the jurors that they had to find
the Commonwealth had proved every element of the robbery charges before
they could find him guilty. See id. at 13. According to Plummer, his claim has
arguable merit, neither counsel had a reasonable basis to fail to raise this
issue, and he was clearly prejudiced. See id. at 13-14. Plummer also claims
that PCRA counsel was ineffective for failing to obtain affidavits from trial and
appellate counsel to determine whether either counsel had a reasonable basis
for their failure to raise the jury instruction issue. See id. at 13.
When evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. Only where there is an abuse of discretion or an
inaccurate statement of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)
(citations and brackets omitted).
During deliberations, the jury asked the trial court: “If we find that the
defendant is guilty of criminal conspiracy the night of the carjacking, does that
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make him guilty of the other charges?” N.T. 2/12/15, at 9. The trial court
responded as follows:
I want to start off by telling you that to reemphasize – not
reemphasize, but to reiterate that there are two different types of
conspiracy involved in this case. There is a conspiracy as a type
of liability, and that was when I talked to you about how you can
be responsible for the crime even if you didn’t physically commit
it under a conspiratorial liability and/or accomplice liability.
Then I said that the crime of conspiracy in and of itself is a crime
in Pennsylvania. And you have separate incidents in this case. So
the simple answer is let’s talk about the one incident in which the
defendant is charged with the robbery, the carjacking, conspiracy,
and the PIC.
You can have a conspiracy for that evening, all right, and we will
talk about those incidents, but I want to make it clear that that
conspiracy would not jump ahead to the other incidents. There
would have to either be separate conspiratorial liability for the
other charges, the intimidation, the retaliation, the arson, and the
conspiratorial liability, or the defendant has been charged with the
crime of conspiracy, and that's why there’s two separate charges
of conspiracy.
Now, you may have already figured that out and that may not be
exactly what you were asking, but I wanted to preface my reading
of the criminal conspiracy again to just make it very clear to you
that if -- you have to look on the specific date to see if there was
a conspiracy.
So you have conspiratorial liability. Now we’re going to get to the
crime of conspiracy. Understand that the elements are the same,
okay. So what it really breaks down to is you can be convicted on
a conspiratorial liability without ever being charged with
conspiracy, but in this particular case the defendant has been
charged with conspiracy.
So in order to determine whether or not he’s guilty of -- we refer
to it as the underlying crime or crimes, so in this case you’ve
specifically asked about carjacking, what you have to do is make
sure that the object of the crime if there's a conspiracy the specific
crime that you’re evaluating.
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So, in other words, I don’t know what facts you’ve determined,
and I’m not going to speculate on that because that’s not my job,
but you have to remember make sure that the object crime or the
agreement is a specific crime that you’re considering.
So in order -- let me use your example of carjacking. In order to
convict the defendant of criminal conspiracy, you would have to
determine that there was an agreement and that there was a
specific agreement to commit the carjacking. If you look at the
robbery, then you have to determine whether there was a specific
agreement to commit the robbery. And that one person or more
took a substantial step in furtherance of the agreement.
In other words, there has to be the common understanding and
it’s a firm common understanding that the particular crime would
be committed.
So, remember, there’s the agreement and then the defendant
cannot be convicted of conspiracy unless he or a fellow conspirator
does something more, an overt act. So as long as someone does
an overt act in the furtherance of the conspiracy, that means
something that would further the goal of the conspiracy, that
shows that the parties have a firm agreement and they’re not just
talking about or thinking about a crime, as I said to you before,
the act has reached the action stage.
So in this particular case remember what happens is under
conspiratorial liability the defendant becomes responsible for the
actions of the other individuals for the specific crime.
Then when you look at the charge of conspiracy, it’s a whole
separate charge itself. So the law says it’s not just a theory of
liability. In Pennsylvania we’re making the agreement and the
action in furtherance of the agreement an additional charge other
than just let’s say the robbery or the carjacking.
Id. at 9-14.
Contrary to Plummer’s assertion of error, our review of the record
reveals that, when taken in its entirety, the jury instruction was specifically
tailored to answer the question and appropriately reflected the law and
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accurately described the differences between conspiratorial liability and the
conspiracy. Importantly, during the original charge, the trial court also
instructed the jury on the robbery and robbery of a motor vehicle charges.
See id. at 200-02. Moreover, the trial court has provided the jury with an
extensive instruction for the conspiracy charges in its original charge. See
N.T., 2/11/15, at 197-200, 202-06. It is presumed that the jury will “follow the
trial court’s instructions,” Commonwealth v. Vucich, 194 A.3d 1103, 1113
(Pa. Super. 2018) (citation omitted), and Plummer takes no issue with the
original instructions. Accordingly, Plummer fails to demonstrate that there was
arguable merit to his underlying claim or that any of the verdicts would have
been different with any additional charge. Therefore, trial counsel was not
ineffective for failing to object to the trial court’s instruction, and by extension,
appellate counsel was not ineffective. See Chmiel, 30 A.3d at 1128 (noting
that “if the petitioner cannot prove the underlying claim of trial counsel
ineffectiveness, then petitioner’s derivative claim of appellate counsel
ineffectiveness of necessity must fail”). Likewise, Plummer’s claim that PCRA
counsel was ineffective for failing to obtain affidavits is also without merit, as
trial and appellate counsel were not ineffective. See id.
Next, Plummer argues that trial counsel was ineffective for failing to
suppress the cell phone seized from his jail cell, and the information obtained
from the phone. See Appellant’s Brief at 14-15, 16; see also Appellant’s
Supplemental Brief at 34-35. Plummer claims the search of his jail cell was
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conducted without a warrant and in violation of his Fourth Amendment rights.
See Appellant’s Brief at 15. Plummer therefore contends that the contents of
his phone is also subject to suppression. See id.
The PCRA court focused on Plummer’s status as a prisoner in concluding
trial counsel was not ineffective:
[Plummer] was incarcerated at Curran-Fromhold Correctional
Facility (“CFCF”) at the time he used an illegal cell phone to
threaten Elliot. After Elliot informed the police that [Plummer] was
the individual who called and threatened him, the police requested
that prison officials search [Plummer’s] prison cell. When prison
officials searched his cell, they confiscated his illegal cell phone,
which he was not entitled to possess under any circumstances.
See 18 Pa.C.S.[A.] § 5123[(c.2)]. After correctional officers
turned the cell phone over to police officers, officers obtained a
valid search warrant and pulled the call records from Cricket
Wireless. These records indicated that the phone was used to call
Elliot four different times. …
[Plummer] has not shown that there was a reasonable basis for
counsel to litigate a suppression motion. There was nothing
improper with law enforcement’s search and seizure of
[Plummer’s] cell phone and any motion to suppress it would have
been frivolous. The applicability of both the federal and
Commonwealth constitutional protections against unreasonable
search and seizure to prisoners is limited. Commonwealth v.
Moore, 928 A.2d 1092, 1099 (Pa. Super. 2007) (citing Hudson
v. Palmer, 468 U.S. 517 (1984)). Additionally, an incarcerated
individual has a limited right to privacy while in prison. Moore,
928 A.2d [at 1102] …; DeBlasio v. Pignoli, 918 A.2d 822 (Pa.
[Cmwlth]. 2007) …. Courts have consistently upheld these
limitations on a prisoner’s right to privacy because of the need to
ensure the safety and operational function of the prison.
Commonwealth v. Boyd, 580 A.2d 393, 394 (Pa. [Super.]
1990).
Prison officials’ search of [Plummer’s] prison cell was justified
because of the need to ensure the safety and function of the
prison. Police officers gave prison officials credible information
that [Plummer] possessed an illegal cell phone and was using it to
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threaten another individual. Because “society is not prepared to
recognize as legitimate any subjective expectation of privacy that
a prisoner might have in his prison cell,” trial counsel had no basis
to litigate a suppression motion, and the claim fails. See Hudson,
468 U.S. at 517 ….
[Plummer] claims that counsel failed to present evidence that he
was incarcerated at the time when he threatened Elliot. This claim
is belied by the record. It was clear from trial counsel’s opening
statement and the evidence presented at trial that [Plummer] was
incarcerated at CFCF at the time Elliot’s house was firebombed.
N.T.[,] 2/10/15[,] at 60. Thus, his claim fails.
PCRA Court Opinion, 7/8/21, at 6-8.
We agree with the sound reasoning of the PCRA court. See id.; see
also Commonwealth v. Watley, 153 A.3d 1034, 1046 (Pa. Super. 2016)
(finding that because the claim that the evidence should have been
suppressed was without merit, counsel was not ineffective for failing to file a
motion to suppress). Therefore, Plummer’s ineffectiveness claim is without
merit.2
Plummer also contends trial counsel was ineffective for failing to obtain
exculpatory evidence. See Appellant’s Brief at 16. Plummer’s claim in its
entirety is as follows:
Trial counsel’s failure to investigate or interview potential
corroborating witness Desean Dobbins who was cell mates with
[Plummer] at the time of these calls to uncover exculpatory
evidence that would have supported [Plummer’s] trial testimony.
United States v. Gray, 878 F.2d 702 (3rd Cir. 1989)[.] See also
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2 Plummer also raised a claim that PCRA counsel was ineffective for failing to
raise this claim. See Appellant’s Supplemental Brief at 34. However, as noted
below, he fails to provide any pertinent analysis to support his ineffectiveness
claim in this regard. See Pa.R.A.P. 2119(a). Accordingly, this claim is waived.
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Commonwealth v. Mabie, 359 A.2d 369, 374 (Pa. 1976).
Counsel’s actions had no reasonable basis and prejudice resulted
from counsel’s failure to investigate, interview potential witness
Desean Dobbins, had trial counsel done so, Desean Dobbins would
have been called to [testify] in-order to corroborate [Plummer’s]
trial testimony.
Id.While recognizing that this Court can liberally construe a pro se brief,
we conclude that Plummer’s argument is woefully inadequate. See
Commonwealth v. Ray, 134 A.3d 1109, 1114-15 (Pa. Super. 2016) (stating
that “a pro se litigant must still comply with the Pennsylvania Rules of
Appellate Procedure.” (citation omitted)). Plummer merely provides
conclusory statements that counsel was ineffective without indicating whether
Dobbins was available to testify on his behalf or the contents of his alleged
corroborative statements. See Commonwealth v. Spotz, 896 A.2d 1191,
1250 (Pa. 2006) (“[B]oilerplate, undeveloped” arguments regarding
ineffective assistance of counsel are “insufficient to establish an entitlement
to post-conviction relief.” (citation omitted)). Therefore, Plummer waived this
claim. See Commonwealth v. Paddy, 15 A.3d 431, 444 (Pa. 2011) (stating
that when an appellant fails “to set forth all three prongs of the ineffectiveness
test and [to] meaningfully discuss them, he is not entitled to relief, and we
are constrained to find such claims waived for lack of development”) (citation
omitted)).
Plummer also contends that trial and appellate counsel were ineffective
for failing to challenge the evidence obtained from the cell phone, because it
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was not properly authenticated and was unreliable. See Appellant’s Brief at
16-17. However, Plummer fails to meaningfully discuss the three prongs of
the ineffectiveness test; therefore, we conclude that this claim is also waived.
See Paddy, 15 A.3d at 444; Spotz, 896 A.2d at 1250.
Next, Plummer baldly argues that “[t]rial counsel provided ineffective
assistance where he failed to demand reciprocal discovery regarding any
negative character evidence during appellant’s trial testimony.” Appellant’s
Brief at 17. Again, Plummer has not provided any other argument and does
not meaningfully discuss the three prongs of the ineffectiveness test; as a
result, the claim is waived. See Paddy, 15 A.3d at 444; Spotz, 896 A.2d at
1250.
Additionally, Plummer asserts that the PCRA court erred in failing to
order him to file a concise statement so that it could address his numerous
ineffective assistance of PCRA counsel claims in an opinion. See Appellant’s
Brief at 17-18. According to Plummer, the PCRA court did not discharge its
duty to address all of his claims. See id. at 18.
Here, Plummer supports his argument by citing to case law related to
counsel’s withdrawal from PCRA representation under Turner/Finley,
claiming that the PCRA court must conduct an independent examination of the
record. Such an argument does not in any way establish that the PCRA court
did not address all of his pro se claims in this case or that the PCRA court had
a legal duty to order the filing of a Pa.R.A.P. 1925(b) concise statement. In
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fact, Plummer neglects to acknowledge that Rule 1925(a) opinions are merely
advisory and are issued for the benefit of appellate review. See Youst v.
Keck’s Food Serv., Inc., 94 A.3d 1057, 1075 (Pa. Super. 2014); see also
Commonwealth v. Lobiondo, 462 A.2d 662, 665 n.4 (Pa. 1983) (noting that
a trial court’s Rule 1925(a) opinion “is intended as an aid to the reviewing
appellate court and cannot alter a previously entered verdict”). Because
Plummer fails to demonstrate that the PCRA court did not consider his claims
prior to dismissing his petition, he is not entitled to relief on this claim. 3
We now turn to Plummer’s supplemental brief, in which he raises 22
claims relating to PCRA counsel’s ineffectiveness. As a preliminary matter, our
Supreme Court recently held that the proper procedure for enforcing the right
to effective PCRA counsel is by “allowing a petitioner to raise claims of
ineffective PCRA counsel at the first opportunity [(after obtaining new counsel
or acting pro se)], even if on appeal.” Commonwealth v. Bradley, 261 A.3d
381, 405 (Pa. 2021).
In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such
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3 We additionally note that Plummer argues our Supreme Court “condemned
the wholesale adoption of a party’s brief in lieu of filing a PCRA court opinion
on the grounds that the independent role of the judiciary is not properly served
absent some autonomous judicial expression of the reasons for dismissing the
PCRA petition.” Appellant’s Brief at 18. However, Plummer cites to no portion
of the PCRA court’s opinion wherein the PCRA court adopted a party’s brief.
Therefore, this claim is without merit.
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claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petition would be required to
provide more than mere boilerplate assertions of PCRA counsel’s
ineffectiveness; however, where there are material facts at issue
concerning claims challenging counsel’s stewardship and relief is
not plainly unavailable as a matter of law, the remand should be
afforded.
Id. at 402 (citations, brackets, and quotation marks omitted). In other words,
“appellate courts will have the ability to grant or deny relief on straightforward
claims, as well as the power to remand to the PCRA court for the development
of the record.” Id. at 403.
We acknowledge that Plummer timely raised his PCRA counsel’s
ineffectiveness claims in his PCRA petitions upon remand by this Court.
However, Plummer is not entitled to relief on these claims or further remand
to develop the record. Indeed, for his claims labeled A through T and V,
Plummer merely raises bald allegations of PCRA counsel’s ineffectiveness for
failing to raise multiple claims, and mostly cites to case law regarding the
general standards applicable to an ineffectiveness assistance of counsel claim
without any further analysis establishing ineffectiveness based upon the
discrete claims. See Supplemental Appellant’s Brief at 10-48, 51; see also
Pa.R.A.P. 2119(a) (noting that an argument must include a pertinent
discussion and citation to authorities). To that end, Plummer has failed to
satisfy any of the three prongs of the ineffectiveness test for each counsel,
which requires a rejection of his claim. See Chmiel, 30 A.3d at 1128; Spotz,
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896 A.2d at 1250.4 Accordingly, based upon this argument and record, we
conclude that Plummer’s PCRA counsel ineffectiveness claims are without
merit. See Bradley, 261 A.3d at 402 (noting that boilerplate allegations of
ineffectiveness do not entitle a petitioner to relief); see also Commonwealth
v. Martz, 232 A.3d 801, 811 (Pa. Super. 2020) (stating that this Court will
not act as counsel or develop arguments for appellant, and that raising issues
without analysis or citation to pertinent authority precludes appellate review
of the claim).
For his claim at U in the supplemental brief, Plummer contends that
PCRA counsel rendered ineffective assistance of counsel by not asserting trial
counsel’s ineffectiveness in failing to object to inflammatory comments by the
prosecution during closing argument. See Appellant’s Supplemental Brief at
48-50. Plummer argues that the prosecution made a joke about his disability.
See id. at 48 (citing N.T., 2/11/15, at 143 (“I don’t think he can’t walk as
much as he wants you to think as he sort of stumbles his way up to the chair,
but he probably can’t run.”)). According to Plummer, the central issue for the
jury to decide was the credibility of the witnesses, and prosecutor’s statement
influenced the jury. See id. at 49-50. Plummer also claims that there was no
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4 We additionally note that Plummer’s claims J, R, T, and V in his supplemental
appellate brief merely incorporate prior sections of his argument, and he does
not articulate any new assertions. See Commonwealth v. Briggs, 12 A.3d
291, 342 (Pa. 2011) (stating that the appellate rules do not allow
incorporation by reference arguments and it “is an unacceptable manner of
appellate advocacy for the proper presentation of a claim for relief”).
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reasonable basis for either counsel’s failure to raise the issue, and that he was
prejudiced by the failure to object to the statement. See id. at 50.
A prosecutor’s arguments to the jury are generally not a
basis for the granting of a new trial unless the unavoidable effect
of such comments would be to prejudice the jury, forming in their
minds fixed bias and hostility towards the accused which would
prevent them from properly weighing the evidence and rendering
a true verdict.
A prosecutor must have reasonable latitude in fairly
presenting a case to the jury and must be free to present []
arguments with logical force and vigor. The prosecutor is also
permitted to respond to defense arguments. Finally, in order to
evaluate whether the comments were improper, we do not look at
the comments in a vacuum; rather we must look at them in the
context in which they were made.
Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (citation
and brackets omitted).
Here, the prosecutor made the statement in the context of the facts of
the case, noting that Plummer stopped chasing Elliot and allowed his two
cohorts to chase Elliot because Plummer cannot run. See N.T., 2/11/15, at
143. Importantly, the prosecutor emphasized that Plummer admitted that he
could not run. See id. The statement cited by Plummer does not in any way
indicate that the prosecutor was joking about Plummer’s disability. Therefore,
the contested statement was proper in the context of the evidence of the case
and Plummer’s claim that trial counsel was ineffective does not have arguable
merit. See Solomon, 25 A.3d at 383. Likewise, Plummer fails to establish
that this single statement prejudiced him where the evidence established that
as Elliot approached the vehicle in question, Plummer and two other men
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jumped out from behind some nearby bushes and confronted Elliot; the two
men, but not Plummer, chased Elliot across the street before they were able
to catch him and take the car keys from him; and Plummer drove the car away
from the scene. In light of the foregoing, Plummer’s ineffectiveness claims
regarding trial and PCRA counsel are without merit. See Chmiel, 30 A.3d at
1128.
In summary, we conclude all of Plummer’s claims of PCRA court error
are either meritless or waived. We therefore affirm the orders dismissing his
amended PCRA petition.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2023
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