Com. v. Amos, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MELVIN WALLACE AMOS, SR. :
:
Appellant : No. 463 WDA 2019
Appeal from the PCRA Order Entered March 11, 2019
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001559-2015
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 3, 2020
Melvin Wallace Amos, Sr. (Amos) appeals from the order of the Court of
Common Pleas of Mercer County (trial court) dismissing his first petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Counsel for Amos seeks to withdraw from representation and has filed a brief
under Anders v. California, 386 U.S. 738 (1967). We deny counsel’s request
to withdraw and direct counsel to take appropriate action in accordance with
our decision.
I.
On August 17, 2015, the Mercer County Drug Task Force applied for a
warrant to search Amos’s home at 1140 Fruit Avenue in Farrell, Pennsylvania.
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* Retired Senior Judge assigned to the Superior Court.
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The affidavit of probable cause alleged that a confidential informant (CI) made
two controlled purchases of drugs inside the residence, the second one
occurring just two days before when the CI bought crack cocaine from Amos.
The issuing authority granted the search warrant and, at the request of the
Task Force, sealed the affidavit under Pa.R.Crim.P. 211(a). The warrant was
executed the next day and resulted in the seizure of two firearms (a Ruger
.45 caliber pistol and a Sterling Arms .25 caliber pistol) from a bedroom that
also contained Amos’s clothing and personal items. Because of a disqualifying
conviction, Amos was charged with, among other offenses, two counts of
Persons Not to Possess Firearms.1
On October 20, 2015, Amos waived his preliminary hearing. At the
preliminary hearing, the Commonwealth did not give Amos the sealed affidavit
despite the Rules of Criminal Procedure requiring it to do so unless it had filed
for an extension, which it had not. See Pa.R.Crim.P. 211(H)(1). The
Commonwealth again failed to provide Amos with the sealed affidavit at his
December 22, 2015 arraignment, the latest an affidavit may remain sealed
under the Rules. See Pa.R.Crim.P. 211(H)(2). The Commonwealth eventually
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1 18 Pa.C.S. § 6105(a). Amos was also charged with Possession with Intent
to Deliver (PWID), 35 P.S. § 780-113(a)(30), and Simple Possession, 35 P.S.
§ 780-113(a)(16), but the Commonwealth withdrew the PWID charge at the
preliminary hearing and did the same for Simple Possession at trial.
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provided Amos with the affidavit on April 28, 2016—over six months after it
was supposed to do so.
Amos continued the case several times to May 9, 2016, at which time
Amos’s new attorney—his third at that point—entered his appearance and
requested a final continuance. The trial court granted it but scheduled trial
for the following month. Two days before trial, on June 13, 2016, trial counsel
filed a motion to suppress the firearms, arguing that suppression was
warranted based on the Commonwealth failing to timely unseal the search
warrant affidavit. He also claimed the warrant lacked probable cause.
Rather than continue the case, the trial court heard the motion on the
morning of trial and found there was probable cause to search Amos’s home.
It also found that suppression was not an appropriate remedy for the
Commonwealth failing to timely unseal the affidavit of probable cause. After
his motion was denied, Amos proceeded directly to trial and was convicted by
a jury of both firearms offenses. He was later sentenced to concurrent four
to eight year imprisonment terms. After the denial of post-sentence motions,
Amos appealed to this Court to raise, among others, a claim based on Batson
v. Kentucky, 476 U.S. 79 (1986), but did not challenge the denial of his
suppression motion. On December 22, 2017, this Court affirmed the
judgment of sentence. See Commonwealth v. Amos, 1868 WDA 2016 (Pa.
Super. 2017) (unpublished memorandum).
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On August 2, 2018, Amos filed a pro se PCRA petition alleging that trial
counsel was ineffective for (1) not timely obtaining discovery, (2) not
challenging the search warrant, and (3) not calling witnesses to establish that
Amos did not own the firearms. PCRA counsel was appointed and filed a
motion to withdraw stating that Amos’s petition was without arguable merit
and lacked any factual or legal basis. He further stated that he had sent Amos
a “no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc).2 The trial court granted the withdrawal and informed Amos that he
could either proceed pro se or hire private counsel.
Amos opted to proceed pro se and filed an amended petition. In his
petition, he preserved the ineffectiveness claims raised in his initial petition
and added a claim alleging that the search warrant lacked probable cause. At
a subsequent PCRA conference, Amos made a number of additional complaints
not included in his amended petition. First, Amos alleged trial counsel was
ineffective for not objecting to the admission at trial of an incriminating
jailhouse phone conversation that he had with his daughter. Next, Amos
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2 While counsel stated in the motion that the Turner/Finley letter was
attached, it is not attached to the motion to withdraw that is included in the
record. We are unable to determine whether it was attached to the original
motion and simply not included in the record, or whether PCRA counsel failed
to attach it to his motion to withdraw.
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alleged trial counsel was ineffective for failing to challenge the veracity of the
warrant; for not compelling disclosure of the CI’s identity; and for not
obtaining the search warrant affidavit until a week before the trial. 3 He also
alleged that the police did not give him a copy of the search warrant during
its execution. Finally, Amos argued that trial counsel should have presented
a defense that one of the other adults living in the house possessed the
firearms, adding that he believed the jury’s verdict was against the weight of
the evidence. At the end of the conference, the trial court determined no
evidentiary hearing was required to address Amos’s issues.
On March 11, 2019, the PCRA court entered an opinion and order
dismissing Amos’s PCRA petitions and addressing all of the issues raised by
Amos in his initial and amended petitions, as well as those issues raised at the
PCRA conference. Amos appealed pro se to this Court and, after being ordered
to do so, filed his own statement of errors complained of on appeal under
Pa.R.A.P. 1925(b). After the case was transmitted to this Court, Amos applied
to the trial court for the appointment of appellate counsel, which it did.
Appellate counsel later filed a motion to withdraw as counsel, alleging that
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3 At the conference, the Commonwealth clarified that it had provided the
affidavit to Amos’s previous attorney on April 28, 2016, which would have
been over a month-and-a-half before trial.
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Amos’s appeal to be wholly frivolous and without merit.4 Rather than respond
to counsel’s Anders brief by filing a pro se merits brief, Amos applied to have
his appeal withdrawn so that he could retain new counsel. We denied that
request.
II.
Before addressing the issues raised by counsel, we first address whether
counsel has satisfied the procedural requirements for withdrawing from
representation. See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa.
Super. 2016) (“Prior to addressing the merits of the appeal, we must review
counsel’s compliance with the procedural requirements for withdrawing as
counsel.”). Preliminarily, we observe that counsel has filed a no-merit brief
and separate petition to withdraw under the procedure established in Anders
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Where counsel
seeks to withdraw on appeal from the denial of PCRA relief, a Turner/Finley
no-merit letter is the appropriate filing. However, “[b]ecause an Anders brief
provides greater protection to a defendant, this Court may accept an Anders
brief in lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29
A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted).
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4 Counsel initially filed only an Anders brief without also filing a petition to
withdraw with an attached notice of rights letter. This Court issued a rule to
show cause order instructing counsel to submit his petition to withdraw as
counsel and attach the notice of rights letter that he sent to Amos. Counsel
subsequently complied with our order.
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As this Court has explained:
Counsel petitioning to withdraw from PCRA representation must
proceed under [Turner/Finley] and must review the case
zealously. Turner/Finley counsel must then submit a “no-merit”
letter to the trial court, or brief on appeal to this Court, detailing
the nature and extent of counsel’s diligent review of the case,
listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Where counsel submits a petition and no-merit letter that 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.
Muzzy, 141 A.3d at 510-11.
Counsel has complied with the requirements for filing an application to
withdraw and states that he has made a conscientious examination of the
record, including Amos’s initial pro se and amended petitions for PCRA relief,
and has concluded that the appeal is frivolous. In addition, counsel sent a
notice of rights letter, along with his brief, to Amos, contemporaneously with
the filing of the application. That letter, which is attached to the application
to withdraw, advises Amos of his right to proceed pro se or retain new counsel.
See Widgins, 29 A.3d at 818.
While counsel’s application to withdraw and his letter to Amos are
compliant with the procedure for withdrawing from representation, his no-
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merit brief fails in several facets. First, he fails to detail the nature and extent
of his review of the case. By failing to do so, this Court cannot determine
whether he has fulfilled his duty to make a full and conscientious examination
of the record. If counsel did in fact make such an examination, it is not
reflected in his cursory two-page statement of the case that makes no mention
of many of the significant factual and procedural details of the case. Among
other details, counsel’s summary makes no mention of the Commonwealth’s
failure to provide the sealed search warrant affidavit to Amos under the Rules
of Criminal Procedure; trial counsel filing the motion to suppress two days
before trial; the trial court’s denial of the motion to suppress or its reasoning;
initial PCRA counsel’s rationale in his Turner/Finley letter for withdrawing
from representation; what issues Amos raised in his amended petition and at
the subsequent PCRA hearing; or the PCRA court’s reasoning for denying and
dismissing Amos’s petitions. In the absence of a factual and procedural history
reflecting all of these details, we are not assured that counsel has fulfilled his
duties under Turner/Finley to review the record.
Counsel’s explanation for his conclusion that Amos’s appeal lacks merit
is similarly lacking. Counsel raises three issues in his brief, all of which were
raised by Amos in his initial pro se PCRA petition:
1. Whether trial counsel was ineffective for failing to conduct
discovery in a timely and proper manner.
2. Whether trial counsel was ineffective for failing to challenge the
search warrant.
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3. Whether trial counsel was ineffective for failing, at trial, to call
witnesses to verify that the firearms belonged to the homeowner,
not the Appellant.
Anders Brief at 4.
While Amos’s second issue is frivolous on its face because trial counsel
did in fact file a motion to suppress (albeit two days before trial), counsel has
failed to comply with Turner/Finley in his discussion of the first and third
issues, both of which address whether trial counsel rendered effective
assistance of counsel.
In order to prevail on a claim alleging ineffective assistance of counsel,
a PCRA petitioner must demonstrate: “(1) that the underlying claim is of
arguable merit; (2) that counsel’s course of conduct was without a reasonable
basis designed to effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability
that but for the act or omission in question the outcome of the proceeding
would have been different.” Commonwealth v. Grayson, 212 A.3d 1047,
1054 (Pa. Super. 2019) (citation and some formatting omitted).
Counsel’s analysis of the first issue consists of one paragraph:
There is simply nothing in the record that reflects that trial counsel
failed to timely or properly conduct discovery. To the contrary,
trial counsel ultimately filed an Omnibus Pretrial Motion
challenging the sufficiency and validity of the search warrant that
led to the charges and ultimate conviction of Amos. Any such
search warrant would have been provided through discovery, so
it appears that trial counsel did obtain timely and proper
discovery.
Anders Brief at 9.
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This analysis is insufficient for a number of reasons, chief among them
being counsel’s limited view of the issue and, as noted above, failing to
acknowledge that Amos’s first two attorneys never sought to unseal the search
warrant affidavit despite being entitled to do so under the Rules of Criminal
Procedure. Amos’s first attorney failed to obtain the sealed affidavit at the
preliminary hearing. Under Pa.R.Crim.P. 211(H)(1), a copy of the sealed
affidavit must be given to the defendant unless the Commonwealth has sought
an extension for good cause, which it did not do in this case. Next, Amos’s
counsel also failed to obtain the affidavit at formal arraignment, even though
Pa.R.Crim.P. 211(H)(2) states that no affidavit shall remain sealed “beyond
the date of the court arraignment.” Amos’s second attorney finally obtained
the sealed affidavit on April 28, 2016, but was then replaced by Amos’s trial
counsel, who apparently never sought to obtain the affidavit from either prior
counsel or the Commonwealth until a week before trial. See Notes of
Suppression Hearing, 6/15/16, at 3.
Besides this significant oversight, counsel fails to analyze whether this
ineffectiveness claim has arguable merit or there was a reasonable basis for
Amos’s attorneys choosing to not obtain the affidavit at any of the allowable
opportunities under the Rules of Criminal Procedure. Regardless of whether
Amos was actually prejudiced by this failure, it is counsel’s duty under
Tuner/Finley to explain why his client’s ineffectiveness claim lacks merit by
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citing to the record the salient facts and then analyzing them under applicable
statutes and case law.
We conclude the same concerning the third issue that counsel has listed
for review. In his initial pro se petition, Amos stated he was seeking to raise
an ineffectiveness claim based on the failure to call a potential witness to
testify about the recovered firearms, both of which were legally owned by
Danielle Dallas, who testified at trial that she was the owner of the firearms.
The framework for raising such a claim of ineffectiveness is well-established:
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the [ineffective assistance of counsel]
test by establishing that: (1) the witness existed; (2) the witness
was available to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness; (4) the
witness was willing to testify for the defense; and (5) the absence
of the testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations
omitted).
Like his analysis of the first issue, counsel’s examination consists of a
one-page discussion that ignores the framework for examining an
ineffectiveness claim and blithely asserts that the issue is meritless because
Amos was convicted under a theory of constructive possession. Counsel cites
neither facts in the record nor controlling case law in his explanation that the
issue is meritless. It is not the job of the reviewing court to explain why and
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how the issue lacks merit under Turner/Finley; instead, it is the duty of
counsel to do so in order to withdraw from representation.
In addition to the failure to comply with Turner/Finley in regard to the
issues discussed, counsel also fails to raise and discuss any of the other issues
that Amos has demonstrated throughout the PCRA proceedings that he wishes
to be raised. It is well-settled that after zealous, diligent review of the case,
PCRA counsel seeking to withdraw must detail each of “the issues which
petitioner wants to have reviewed” and explain “why and how those issues
lack merit[.]” Muzzy, 141 A.3d at 511 (quoting Commonwealth v. Wrecks,
931 A.2d 717, 721 (Pa. Super. 2007)).
As discussed above, the PCRA court addressed the merits of all of
Amos’s issues in its opinion denying PCRA relief, including the issues raised in
the amended petition and at the PCRA conference. Among others, these
issues included trial counsel’s effectiveness in regard to the admission of a
jailhouse phone conversation; trial counsel’s effectiveness in moving to
suppress the firearms, as well as the underlying merits of the trial court’s
denial of the motion; and trial counsel failing to raise any issue with Amos not
being provided a copy of the search warrant at the time of execution. That
the PCRA court found these issues to be meritless does not alleviate counsel’s
duty under Turner/Finely to examine all of the issues that his client wants to
be raised and addressed, and then explain how and why they lack merit. By
failing to do so, counsel has failed to comply with Turner/Finley.
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Accordingly, because he has failed to fulfill his obligation for withdrawal,
we deny counsel’s application to withdraw as counsel. We direct counsel to
file either an advocate’s brief or a Turner/Finley no-merit letter and
application to withdraw as counsel, within 30 days.
Application to withdraw as counsel denied. Counsel directed to file an
advocate’s brief or compliant application to withdraw within thirty 30 days.
Panel jurisdiction retained.
Judge Lazarus joins the memorandum.
President Judge Emeritus Gantman concurs in the result.
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