Com. v. Hill, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARQUISE HILL :
:
Appellant : No. 2003 MDA 2018
Appeal from the Order Entered October 25, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0000751-2014
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 24, 2020
Appellant, Marquise Hill, appeals from an order entered on October 25,
2018, that denied in part, and granted in part, his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.1 After
numerous motions and intervening filings, this case is once more before our
panel.
The record reveals that on December 10, 2014, following a jury trial,
Appellant was found guilty of robbery, simple assault, recklessly endangering
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1 Although this case presents a convoluted procedural history, we conclude
that the October 25, 2018 order, which partially denied Appellant’s PCRA
petition, is a final order and is ripe for disposition. See Commonwealth v.
Grove, 170 A.3d 1127, 1150-1151 (Pa. Super. 2017) (addressing the merits
of an appeal from an order partially denying a PCRA petition).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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another person, and harassment.2 The trial court applied the “three strikes”
sentencing enhancement from 42 Pa.C.S. § 9714(a)(2), and it imposed a
mandatory minimum sentence of twenty-five years for robbery. This resulted
in an aggregate term of twenty-five to fifty years of incarceration. Appellant
filed a timely appeal, and this Court affirmed Appellant’s judgment of
sentence. Commonwealth v. Hill, 141 A.3d 582, 132 MDA 2015 (Pa. Super.
filed February 1, 2016) (unpublished memorandum).
Appellant filed a timely PCRA petition on October 26, 2016. On
December 9, 2016, the PCRA court held a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine if
Appellant wished to waive his right to counsel and whether the waiver was
knowingly, voluntarily, and intelligently made. The PCRA court permitted
Appellant to represent himself and appointed Attorney Kurt Lynott
(“Attorney Lynott”), as stand-by counsel. Order, 12/9/16. Hearings on
Appellant’s PCRA petition were held on October 24, 2017, January 9, 2018,
and May 29, 2018. During Appellant’s third PCRA hearing on May 29, 2018,
Appellant requested Attorney Lynott’s representation for the rest of the
“case.” N.T., 5/29/18, at 41-42. On October 25, 2018, the PCRA court
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2 18 Pa.C.S. §§ 3701(a)(1)(ii), 2701(a)(3), 2705, and 2709(a)(1),
respectively.
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granted Appellant’s PCRA petition in part, and denied it in part.3 Order,
10/25/18. Specifically, the PCRA court granted Appellant relief with respect
to the legality of his sentence, directing that Appellant must be resentenced
without the “three strikes” sentencing enhancement. Order, 10/25/18. The
PCRA court denied Appellant’s PCRA petition in all other respects. Id.
Despite Attorney Lynott remaining counsel of record, Appellant filed a
pro se notice of appeal, and the PCRA court directed Appellant to file a
Pa.R.A.P. 1925(b) statement. Appellant complied, and the PCRA court filed a
Pa.R.A.P. 1925(a) opinion on January 15, 2019.
On April 3, 2019, Appellant filed a pro se application in this Court for
permission to file a reduced number of copies of his brief and reproduced
record. This Court granted Appellant’s application on April 17, 2019. On
May 9, 2019, Appellant filed his briefs and reproduced records pro se.
On June 14, 2019, Appellant filed a pro se motion to proceed in forma
pauperis (“IFP”). As noted, Attorney Lynott had not been granted leave to
withdraw and remained counsel of record. See Commonwealth v. Cherry,
155 A.3d 1080, 1082-1083 (Pa. Super. 2017) (criminal defendants have a
right pursuant to Pa.R.Crim.P. 904(C) to the assistance of counsel for their
first PCRA petition through the entire appellate process, and once counsel is
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3 The PCRA court granted Appellant PCRA relief in part, concluding that
Appellant should be resentenced without the “three strikes” sentencing
enhancement imposed pursuant to 42 Pa.C.S. § 9714(a). Order, 10/25/18.
The court denied Appellant’s PCRA petition in all other respects. Id.
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appointed, he must take affirmative steps to discharge his duties) (citations
omitted).
In a judgment order filed on June 24, 2019, we remanded this matter
to the PCRA court to determine Appellant’s IFP status and for a Grazier
hearing to determine if Appellant wanted counsel or to proceed pro se. This
Court also instructed that in the event Attorney Lynott continued his
representation, the PCRA court was to afford him the opportunity to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Subsequently, in a letter dated July 14, 2019, Appellant informed
the PCRA court that he wished to have Attorney Lynott continue to represent
him.4 On July 19, 2019, the PCRA court directed Appellant to file a Pa.R.A.P.
1925(b) statement. However, on August 27, 2019, Attorney Lynott filed a
statement pursuant to Pa.R.A.P. 1925(c)(4) in he which he averred that there
were no issues of arguable merit. On October 2, 2019, the PCRA court filed
its Pa.R.A.P. 1925(a) opinion. The PCRA court noted that Appellant
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4 Despite Attorney Lynott’s representation, on October 17, 2019, Appellant
filed a pro se motion to supplement the record. On October 21, 2019, our
Prothonotary forwarded the pro se motion to Attorney Lynott pursuant to
Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011). Attorney Lynott did not
pursue this motion. We need take no further action on this motion as it is not
properly before this Court. Id. at 1044.
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maintained his IFP status because he remained incarcerated, and his financial
situation was unchanged. PCRA Court Opinion, 10/2/19, at 3.5
On October 23, 2019, Attorney Lynott filed an application to withdraw
and a brief.6 On November 8, 2019, Appellant filed a pro se motion for an
extension of time in which to file a reply to counsel’s brief and application to
withdraw. On November 15, 2019, this Court granted Appellant’s motion and
ordered that Appellant’s response was due on or before December 23, 2019.
However, we also stated that no further extensions would be granted. As of
this writing, Appellant has not filed a response.
Prior to addressing the merits of the issues on appeal, we must first
decide whether counsel has fulfilled the procedural requirements for
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5 We note that on June 14, 2019, Appellant filed a motion to proceed IFP in
this Court. We reiterate that Appellant was represented by counsel at that
time, and the motion was not properly before this Court. Jette, 23 A.3d at
1044. Accordingly, we need not rule on this motion. Nevertheless, because
the PCRA court concluded that Appellant maintained his IFP status due to his
incarceration and unchanged financial status, we discern no barrier to
Appellant maintaining IFP status on appeal pursuant to Pa.R.A.P. 551.
6 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), which is proper where counsel seeks to withdraw representation in a
direct appeal. This matter involves an application to withdraw on collateral
review; therefore, a Turner/Finley no-merit letter is the appropriate filing.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 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).
Nevertheless, because Turner, Finley, and their progeny provide the proper
means of review, and in an effort to forestall further confusion in this
convoluted appeal, we refer to counsel’s brief as a Turner/Finley letter.
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withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795,
797 (Pa. Super. 2008). This Court has listed conditions counsel must satisfy
when seeking to withdraw in a collateral appeal:
Counsel petitioning to withdraw from PCRA representation
must proceed ... under Turner, supra and Finley, supra 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.
* * *
[W]here counsel submits a petition and no-merit letter that
... satisfy the technical demands of Turner/Finley, the [court in
which the application was filed, meaning the trial court or the
appellate 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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted).
In the application filed with this Court, Attorney Lynott explained he
reviewed the case, evaluated the issues, conducted an independent review of
the record, and concluded there were no issues of merit. Counsel listed issues
Appellant sought to raise and explained why the appeal is without merit. In
addition, counsel asserted that he served upon Appellant a copy of the
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application to withdraw, the no-merit letter, and a letter addressed to
Appellant accompanying those documents. Accordingly, we next review the
issues raised in the Turner/Finley Letter.
In the Turner/Finley Letter, counsel set forth the fifteen issues
Appellant wanted to raise on appeal, which counsel concludes are meritless,
as follows:
1. Did the trial court commit [an] error of law or abuse its
discretion in failing to determine that the Commonwealth failed to
provide sufficient evidence that [Appellant] committed the crimes
alleged[?]
2. Did the trial court commit [an] error of law or abuse its
discretion in failing to determine that the Commonwealth failed to
prove beyond a reasonable doubt all the elements of robbery[?]
3. Did the trial court commit [an] error of law or abuse its
discretion in failing to determine that the Commonwealth failed to
prove beyond a reasonable doubt that [Appellant] by physical
menace placed the victim in fear of serious bodily injury to
establish the crime of simple assault[?]
4. Did the trial court commit [an] error of law or abuse its
discretion in failing to determine that the Commonwealth failed to
prove beyond a reasonable doubt that [Appellant] acted recklessly
which placed the victim in danger of death or serious bodily
injury[?]
5. Did the trial court commit [an] error of law or abuse its
discretion in failing to determine that the Commonwealth failed to
prove the elements required for the summary conviction of
harassment[?]
6. Did the trial court commit [an] error of law or abuse its
discretion in allowing the hearsay testimony of officer Jill Foley[?]
7. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error by determining
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that the trial counsel was not ineffective for not requesting the
transcript from the preliminary hearing[?]
8. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error when it
determined that trial counsel was not ineffective for not filing a
petition for writ of habeas corpus as the victim failed to properly
identify [Appellant?]
9. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error by determining
that trial counsel was not ineffective for not obtaining copies of
the 911 call made by the victim describing [Appellant?]
10. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error when it
determined that trial counsel was not ineffective for not filing a
motion to suppress the physical evidence utilized at trial[?]
11. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error when it
determined that trial counsel was not ineffective for not
challenging the security video of the crime being committed[?]
12. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error when it
determined that trial counsel was not ineffective for not providing
the testimony of two (2) alibi witnesses as requested by
[Appellant?]
13. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error when it
determined that trial counsel was not ineffective for not allowing
[Appellant] to testify on his own behalf[?]
14. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error when it
determined that trial counsel was not ineffective for not showing
[Appellant’s] clothing that he was wearing the night of the incident
to the jury[?]
15. Was the PCRA court’s denial of [Appellant’s] PCRA petition
supported by the record and/or free of legal error when it
determined that trial counsel was not ineffective for not allowing
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[Appellant] to participate in jury selection and the first twelve
jurors were selected[?]
Turner/Finley Letter at 4-7 (full capitalization omitted).
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
To be eligible for relief under the PCRA, a defendant must plead and
prove that his conviction and/or sentence resulted from one of the
circumstances delineated by the PCRA. See 42 Pa.C.S. § 9543 (outlining the
eligibility requirements for PCRA relief). Among those requirements are that
the issue must not be previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
An issue is previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue[.]” 42 Pa.C.S. § 9544(a)(2).
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Appellant’s first five issues assail the sufficiency of the evidence at trial,
and the sixth issue challenges one of the trial court’s evidentiary rulings.
Turner/Finley Letter at 4-5. However, Attorney Lynott asserts that these
issues were previously litigated. Id. at 11-12. We agree. The record reveals
that the trial court disposed of these issues in its March 31, 2015 opinion.
Moreover, this Court addressed the issues in Appellant’s direct appeal. We
concluded that there was sufficient evidence to establish the convictions, and
we discerned no abuse of discretion in the trial court’s evidentiary ruling. Hill,
141 A.3d 582, 132 MDA 2015 (unpublished memorandum at 7-16).
Accordingly, Appellant is ineligible for relief on his first six issues because they
were previously litigated. 42 Pa.C.S. §§ 9543(a)(3); 9544(a)(2).
In issues seven through fifteen, Appellant alleges ineffective assistance
of trial counsel, Attorney Joseph Kalinowski (“Attorney Kalinowski”).
Turner/Finley Letter at 5-7. In order to succeed on a claim of ineffective
assistance of counsel, an appellant must demonstrate (1) that the underlying
claim is of arguable merit; (2) that counsel’s performance lacked a reasonable
basis; and (3) that the ineffectiveness of counsel caused the appellant
prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). We
have explained that trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa.
Super. 2003) (en banc). Moreover, with regard to the second prong of the
Pierce test, we have reiterated that trial counsel’s approach must be “so
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unreasonable that no competent lawyer would have chosen it.”
Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting
Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).
In addition, we are mindful that prejudice requires proof that there is a
reasonable probability that but for counsel’s error, the outcome of the
proceeding would have been different. Pierce, 786 A.2d at 213. “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). It is
presumed that the petitioner’s counsel was effective, unless the petitioner
proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa.
1999).
For the reasons that follow, we agree with Attorney Lynott that the
issues are meritless. Appellant begins by claiming Attorney Kalinowski was
ineffective for failing to request the transcript from the preliminary hearing.
Turner/Finley Letter at 4. However, at the PCRA hearing on October 24,
2017, Attorney Kalinowski testified that Appellant was incorrect in this claim.
Attorney Kalinowski testified that he requested the notes of testimony from
the preliminary hearing. N.T. (PCRA Hearing I), 10/24/17, at 41-42.
Moreover, the transcript is in the certified record. Certified Record Entry #6;
N.T., Preliminary Hearing, 4/14/14. Accordingly, this issue is meritless.
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Appellant asserts in his eight issue that Attorney Kalinowski was
ineffective in refusing to file a petition for writ of habeas corpus after his
preliminary hearing. A preliminary hearing serves a limited function; its
purpose is to determine if a crime was committed and the probability that the
defendant could be connected to the crime. Commonwealth v. Landis, 48
A.3d 432, 444 (Pa. Super. 2012) (citation omitted). Where a criminal
defendant seeks to challenge the sufficiency of the evidence presented at his
preliminary hearing, he may pursue a writ of habeas corpus. Id. (citation
omitted). However, Attorney Kalinowski testified that he did not file the
petition because in his opinion, there was no basis upon which habeas corpus
relief could be granted. N.T. (PCRA Hearing I), 10/24/17, at 59; N.T. (PCRA
Hearing II), 1/9/18, at 26. At the preliminary hearing, the victim testified that
Appellant robbed the gas station where she worked using a gun. N.T.
(Preliminary Hearing), 4/14/14, at 8. The victim positively identified Appellant
at the hearing. Id. at 15. We conclude that Attorney Kalinowski was
reasonable in this course of action, and it was unlikely a petition for habeas
corpus relief would have been successful or achieved a different result.
Pierce, 786 A.2d at 213. Moreover, when a defendant has been proven guilty
beyond a reasonable doubt in a trial completed without reversible error, it is
would be “inappropriate as well as foolish” to require a new preliminary
hearing or trial. Commonwealth v. Worrall, 609 A.2d 851, 852 (Pa. Super.
1992). Appellant issue is meritless.
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In his ninth issue, Appellant claims that Attorney Kalinowski was
ineffective in failing to obtain a copy of the 911 call made by the victim.
However, Attorney Kalinowski testified that he was not provided with any
evidence of a 911 call. N.T. (PCRA Hearing I), 10/24/17, at 47. At the second
PCRA hearing, Appellant, who remained pro se, testified that he learned there
was, in fact, a 911 call made at the time of the robbery. N.T. (PCRA Hearing
II), 1/9/18, at 4. The parties and the PCRA court discussed this call, and the
PCRA court explained that the recordings of those calls are kept for a finite
period and there no longer was a recording of a 911 call. Id. at 16. After
review of the record, we find Appellant failed to establish how the result of the
proceedings would have been different if a recording of the 911 call had been
obtained. Appellant argued the 911 call would have shown a discrepancy in
identification, but he failed to establish what this discrepancy was or in what
way Attorney Kalinowski was ineffective. Id. at 15-16. Thus, this claim is
meritless.
Next, Appellant asserts in his tenth issue that Attorney Kalinowski was
ineffective in failing to file a motion to suppress the physical evidence.
However, Attorney Kalinowski explained that no evidence was seized from
Appellant’s person, and there was no basis in law for an omnibus motion to
suppress. N.T. (PCRA Hearing I), 10/24/17, at 43. We note that it is difficult
to discern what evidence Appellant wanted suppressed; however, in the
context of the PCRA hearing, wherein Appellant represented himself and
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questioned Attorney Kalinowski, there was a focus on evidence allegedly
seized from Appellant’s person at the time of his arrest. Id. at 42. Because
no evidence was seized from Appellant’s person, this claim is meritless. We
reiterate that counsel cannot be deemed ineffective for failing to pursue a
meritless claim. Loner, 836 A.2d at 132.
In his eleventh issue, Appellant argues Attorney Kalinowski was
ineffective because he did not challenge aspects of the security video.
Specifically, Appellant posited that the video footage had been altered or
edited. N.T. (PCRA Hearing I), 10/24/17, at 55. However, at the hearing,
Attorney Kalinowski testified that the video was not edited and there was no
evidence that the video in question had been edited or altered in any way.
Accordingly, there was no basis to move to suppress the video based on
Appellant’s allegation that it had been altered. Id.
In his twelfth issue, Appellant asserts Attorney Kalinowski was
ineffective in failing to call two purported alibi witnesses. After our review of
the record, we discern no basis upon which to conclude this course of action
was unreasonable. The record reflects that Attorney Kalinowski explained that
he spoke to Appellant’s proposed alibi witnesses, and he concluded there were
too many inconsistencies in their statements. N.T. (PCRA Hearing I),
10/24/17, at 63. There was also an allegation that one of these alibi witness
was harassing the victim. Id. at 63, 94. Additionally, Attorney Kalinowski
stated that he concluded the alibi defense was weak and difficult to establish;
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in his professional opinion, Attorney Kalinowski believed Appellant had a better
opportunity for success challenging the identification evidence. Id. at 64.
Providing an alibi defense with inconsistent witnesses would not have been in
Appellant’ best interest. We discern nothing unreasonable with
Attorney Kalinowski’s decision. See Ervin, 766 A.2d at 862-863 (stating that
in order to satisfy the second prong of the Pierce test, counsel’s chosen
strategy must be so unreasonable that no competent lawyer would have
chosen it).
In his thirteenth issue, Appellant alleges that Attorney Kalinowski was
ineffective in precluding Appellant from testifying. Attorney Kalinowski noted
that prior to trial, he advised Appellant not to testify because Appellant’s
criminal record that could then be admissible. N.T. (PCRA Hearing I),
10/24/17, at 79-80. However, Attorney Kalinowski explained that he left the
decision to testify was to Appellant, and Appellant opted to refrain. Id. at 81.
We note that the decision to testify is to be made by the accused after
consultation with counsel. Commonwealth v. Daniels, 999 A.2d 590, 596
(Pa. Super. 2010) (citation omitted). Even if Attorney Kalinowski counseled
Appellant not to testify, we would not conclude that counsel was ineffective
because Appellant’s testimony could have been be impeached with his prior
crimen falsi. Id. (citation omitted). We conclude there is no merit to
Appellant’s claim of ineffectiveness in this regard.
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In his fourteenth issue, Appellant argues that Attorney Kalinowski was
ineffective in failing to show the jury the clothing that Appellant wore on the
night of the robbery when he was arrested. The assertion here is that the
clothes Appellant wore did not match the victim’s description. First, we note
that there was only an incidental reference to Appellant’s clothes at the first
PCRA hearing. N.T. (PCRA Hearing I), 10/24/17, at 87. However, this issue
was explored in more detail at the second hearing, and Appellant, who
continued to represent himself, asked Attorney Kalinowski why the clothes
were not shown to the jury. N.T. (PCRA Hearing II), 1/9/18, at 92. In
response to Appellant’s question, Attorney Kalinowski could not recall if the
clothes had been used as an exhibit. Id. However, Appellant asked a follow-
up question asserting that “You read them off.” Id. at 93.
Our independent review of the record reveals that this statement refers
to a stipulation at trial. Rather than exhibit the clothes that Appellant wore at
the time of his arrest, which were also the clothes that he allegedly wore
during the commission of the crime, Attorney Kalinowski stipulated to having
the trial court read the prison’s inventory of Appellant’s clothing. N.T. (Trial),
11/10-12/14, at 259. During Appellant’s intake at the prison, his clothes were
removed and an inventory was created that described Appellant’s clothes in
detail. Id. at 258. After the parties stipulated, the trial court read the
inventory into the record for the jury to hear. Id. at 259. Counsel’s decision
for this course of action was that the description of the clothing in the
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inventory did not match the victim’s description of the perpetrator’s clothes,
and Attorney Kalinowski referred to the stipulation and the discrepancy in his
closing. Id. at 269. Therefore, although Attorney Kalinowski did not
physically display the clothes to the jury, the prison inventory describing the
clothing was read to the jury and the differences were highlighted. We cannot
conclude that this was an unreasonable trial strategy, and we do not conclude
Attorney Kalinowski was ineffective for choosing the stipulation over
displaying the clothes to the jury.
In his final issue, Appellant asserts that Attorney Kalinowski was
ineffective in preventing Appellant from participating in jury selection.
However, Attorney Kalinowski explained that Appellant sat directly next to him
during jury selection. N.T. (PCRA Hearing I), 10/24/17, at 87.
Attorney Kalinowski testified that Appellant asked him no questions. Id.
Attorney Kalinowski also explained that he used all of his preemptory
challenges in selecting the jury, the Commonwealth then utilized all of its
challenges, and then they selected the jury that sat for Appellant’s trial. Id.
at 89. We conclude that there is nothing in the record that supports
Appellant’s claim that Attorney Kalinowski prevented Appellant from
participating in jury selection, and we agree this claim is meritless.
After review, we agree with Appellant’s PCRA counsel, Attorney Lynott,
that there is no merit to any of the issues Appellant raised. As noted above,
in the October 25, 2018 order, the PCRA court granted relief on Appellant’s
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challenge to the legality of his sentence, but it denied relief on all of the other
issues. After our independent review, we discern nothing unreasonable with
Attorney Kalinowski’s decisions or trial strategy, and we cannot conclude that
Attorney Kalinowski provided ineffective assistance of counsel. See Ervin,
766 A.2d at 862-863 (stating that in order to satisfy the second prong of the
Pierce test, counsel’s chosen strategy must be so unreasonable that no
competent lawyer would have chosen it).
For the reasons set forth above, we conclude that the PCRA court’s order
is supported by the record and free of legal error. Having determined that
Appellant is not entitled to PCRA relief on the issues raised on appeal, we
affirm the order of the PCRA court and relinquish jurisdiction, which will allow
the trial court to proceed with resentencing Appellant in conformity with the
PCRA court’s October 25, 2018 order. Thus, we are constrained to deny
counsel’s application to withdraw and direct Attorney Lynott to represent
Appellant during resentencing.
Order affirmed. Attorney Lynott’s application to withdraw as counsel
denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/24/2020
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