Com. v. Olive, O. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
O’NEAL JAMEL OLIVE :
:
Appellant : No. 806 WDA 2019
Appeal from the PCRA Order Entered May 7, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009029-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 27, 2020
Appellant, O’Neal Jamel Olive, appeals from the post-conviction court’s
May 7, 2019 order that denied his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises
claims of ineffective assistance of trial counsel, and he also contends that the
court erred in denying his petition based on his allegedly inadequate witness
certifications. After careful review, we vacate the order and remand for an
evidentiary hearing.
This Court briefly summarized the facts and procedural history of
Appellant’s case in our disposition of his direct appeal, as follows:
On May 11, 2014, Appellant fired approximately 11 shots at
Jahtae Boyce (“Boyce”) and Deandre Carter (“Carter”) as they
were standing in front of Carter’s residence. Neither Boyce nor
Carter was hit by the gunfire. Three shots, however, entered Mary
Johnston’s (“Johnston’s”) residence, which was located next to
Carter’s residence. Johnston and her husband were in the
residence when one of those bullets struck Johnston in the face.
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As a result of that gunshot wound, Johnston suffered brain
damage.
***
On August 12, 2014, the Commonwealth charged Appellant
via criminal information with four counts of recklessly endangering
another person, three counts of attempted murder, three counts
of aggravated assault, two counts of discharging a firearm into an
occupied structure, and carrying a firearm without a license. At
the conclusion of the Commonwealth’s case-in-chief, the trial
court granted Appellant’s motion for judgment of acquittal on the
carrying a firearm without a license charge. On December 18,
2014, Appellant was convicted of the remaining 12 offenses.
On March 10, 2015, the trial court sentenced Appellant to
an aggregate term of 35 to 70 years’ incarceration.
Commonwealth v. Olive, 609 WDA 2015, unpublished memorandum at *1-
2 (Pa. Super. filed Aug. 21, 2017).
Appellant appealed from his judgment of sentence, and this Court
affirmed his convictions, but vacated an illegal aspect of his sentence and
remanded for resentencing. See id. at 7. On January 18, 2018, Appellant
was resentenced to an aggregate term of 22 to 44 years’ imprisonment. He
did not appeal from that sentence.
Instead, on February 13, 2019, Appellant filed the timely, counseled
PCRA petition underlying his present appeal. Therein, he presented three
claims of trial counsel’s ineffectiveness. Notably, he presented three witness
certifications: one for his trial counsel, and two for police officers who had
testified at his trial. On March 6, 2019, the Commonwealth filed a response,
contending, inter alia, that the three witness certifications attached to
Appellant’s petition were inadequate and his petition should be denied without
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a hearing. On March 13, 2019, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition without a hearing, citing only
that his “[p]etition [was] defective in failing to file proper certifications.”
Pa.R.Crim.P. 907 Notice, 3/13/19, at 1 (single page).
On March 29, 2019, Appellant filed a timely response to the court’s Rule
907 notice, supplementing the purported inadequacies in his witness
certifications. For instance, Appellant explained the futile efforts he had taken
to procure the signatures of his proposed witnesses. See Response to Rule
907 Notice, 3/29/19, at 3-4. He also attached a more detailed certification
for his trial counsel, and included a police report to supplement the
certification for one of the police officers he intended to call at the hearing.
Notwithstanding Appellant’s efforts, on May 7, 2019, the PCRA court issued
an order dismissing his petition without a hearing. Again, the court premised
its decision solely on the inadequacy of Appellant’s witness certifications.
Appellant filed a timely notice of appeal, and he timely complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The PCRA court thereafter filed a Rule 1925(a)
opinion. Therein, the court explained why it dismissed Appellant’s petition
without a hearing, stating:
After reviewing [Appellant’s] PCRA petition, the
Commonwealth’s response thereto, and [Appellant’s] response to
this [c]ourt’s notice of intention to dismiss, this [c]ourt
determined that [Appellant’s] PCRA petition did not raise any
claims which were cognizable under the PCRA. Moreover, this
[c]ourt noted that [Appellant’s] PCRA petition was procedurally
deficient, as [Appellant] did not provide the requisite witness
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certifications. See 42 Pa.C.S. § 9545(d); Pa.R.Crim.P. 902
(relating to witness certification requirements).
PCRA Court Opinion (PCO), 9/13/19, at 6-7 (unnumbered).
Alternatively, the court concluded that Appellant’s petition should be
dismissed on the merits, reasoning that Appellant set forth only “general
assertions that he was, ‘deprived [the benefit] of a fair trial,’ and that there
‘is...a fair probability that the trial’s outcome would have been different,’ but
for trial counsel’s ineffectiveness. These vague assertions are far less than a
petitioner seeking post-conviction relief for ineffective assistance of counsel
must prove.” Id. at 8-9 (citation omitted). Without further discussion, the
court concluded that it had properly dismissed Appellant’s petition. See id.
at 9.
Now, on appeal, Appellant states the following issues for our review,
which we have reordered for ease of disposition:
1. Did the PCRA court err in dismissing [Appellant’s] petition based
on a supposed procedural defect when [Appellant’s] witness
certifications substantially complied with the PCRA’s
requirements?
2. The defense theory presented to the jury in the opening
statement was that this was a one-eyewitness case, and that one
eyewitness shouldn’t be believed. In the middle of trial, the
Commonwealth presented the testimony of a surprise second
eyewitness. [Appellant] suffered prejudiced as a result of his trial
counsel’s failure to request a mistrial once he learned of the
surprise eyewitness. Did the PCRA court err in dismissing
[Appellant’s] petition without a hearing?
3. Did the PCRA court err in dismissing [Appellant’s] petition
without a hearing when [Appellant] was prejudiced by his trial
counsel’s failure to effectively confront the K-9 tracking evidence?
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4. Did the PCRA court err in dismissing [Appellant’s] petition
without a hearing when [Appellant] was prejudiced by his trial
counsel’s failure to request the standard jury instruction
addressing the significance of the eyewitness[’s] prior inconsistent
statements?
Appellant’s Brief at 2-3 (footnoted citations to the record omitted).
Initially, we note that, “[t]his Court’s standard of review from the grant
or denial of post-conviction relief is limited to examining whether the lower
court’s determination is supported by the evidence of record and whether it is
free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa.
1995)).
Moreover, “[t]here is no absolute right to an evidentiary hearing
on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing
is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008), appeal denied, 956 A.2d 433 (Pa. 2008) (citing
Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003));
Pa.R.Crim.P. 907(2). A reviewing court must examine the issues
raised in the PCRA petition in light of the record in order to
determine whether the PCRA court erred in concluding that there
were no genuine issues of material fact and in denying relief
without an evidentiary hearing. Commonwealth v. Jordan, 772
A.2d 1011, 1014 (Pa. Super. 2001) (citation omitted).
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).
Here, we first address Appellant’s argument that the PCRA court erred
by dismissing his petition without a hearing based solely on his purportedly
inadequate witness certifications. The required contents of witness
certifications are set forth in section 9545(d) of the PCRA, as follows:
(d) Evidentiary hearing.--
(1) The following apply:
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(i) Where a petitioner requests an evidentiary hearing, the
petition shall include a certification signed by each intended
witness stating the witness’s name, address, date of birth
and substance of testimony and shall include any documents
material to that witness’s testimony.
(ii) If a petitioner is unable to obtain the signature of a
witness under subparagraph (i), the petitioner shall include
a certification, signed by the petitioner or counsel, stating
the witness’s name, address, date of birth and substance of
testimony. In lieu of including the witness’s name and
address in the certification under this subparagraph, counsel
may provide the witness’s name and address directly to the
Commonwealth. The certification under this subparagraph
shall include any documents material to the witness’s
testimony and specify the basis of the petitioner’s
information regarding the witness and the petitioner’s
efforts to obtain the witness’s signature. Nothing in this
subparagraph shall be construed to contravene any
applicable attorney-client privilege between the petitioner
and postconviction counsel.
(iii) Failure to substantially comply with the requirements of
this paragraph shall render the proposed witness’s
testimony inadmissible.
42 Pa.C.S. § 9545(d).
In the case sub judice, Appellant argues that his witness certifications
substantially complied with the PCRA’s requirements, which is all that is
necessary to obtain a hearing. See 42 Pa.C.S. § 9545(d)(1)(iii) (directing
that the petitioner must “substantially comply”); Pa.R.Crim.P. 902(A)(15) (“A
petition for post-conviction collateral relief shall bear the caption, number, and
court term of the case or cases in which relief is requested and shall contain
substantially the following information: (15) if applicable, any request for an
evidentiary hearing. The request for an evidentiary hearing shall include a
signed certification as to each intended witness, stating the witness’s name,
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address, and date of birth, and the substance of the witness’s testimony. Any
documents material to the witness’s testimony shall also be included in the
petition[.]”) (emphasis added). Appellant explains the actions he took to
obtain the signatures of the two police officers he intends to call as witnesses,
and he insists that his certifications contain as much detail as possible, given
the officers’ refusal to speak to his PCRA counsel. See Appellant’s Brief at 40-
42. Appellant also points out that the officers were the Commonwealth’s
witnesses at trial. Id. at 42. Thus, the Commonwealth was on notice of their
identities and locations, as well as the basic content of their testimony.
Appellant further explains that his trial counsel also failed to respond to
his current counsel’s request for a signature on the witness certification. Id.
at 43. Appellant then reiterates the anticipated content of his trial counsel’s
testimony, which he set forth in his response to the court’s Rule 907 notice.
Id. at 43-44. Accordingly, Appellant argues that he substantially complied
with the witness-certification requirements of section 9545(d)(1) and, as
such, the PCRA court erred by dismissing his petition without a hearing.
Notably, the Commonwealth conceded, at oral argument in this case, that an
evidentiary hearing is warranted.
We agree with the parties. At no point in its Rule 907 notice, the order
dismissing Appellant’s petition, or in its Rule 1925(a) opinion did the PCRA
court provide any explanation for why it concluded that Appellant’s witness
certifications failed to substantially comply with the PCRA’s requirements. Our
review of the record demonstrates that the court’s unsupported decision was
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erroneous. Appellant’s original witness certifications, and his supplemented
certifications filed in response to the court’s Rule 907 notice, adequately
conveys the identities of the witnesses he intends to call, his efforts to obtain
their signatures on the certifications, and the basic substance of their
proposed testimony. This information, read in conjunction with the claims
asserted in Appellant’s petition, sufficiently notifies the Commonwealth of the
testimony Appellant plans to elicit from his witnesses at an evidentiary
hearing. Consequently, Appellant substantially complied with section
9545(d), and the PCRA court erred by dismissing his petition on the basis that
his witness certifications were inadequate.
Additionally, we reject the PCRA court’s alternative conclusion that
Appellant’s petition was properly dismissed because he provided only ‘general’
and ‘vague’ ineffectiveness claims in his petition. See PCO at 8-9. To the
contrary, Appellant filed a 23-page petition that provides detailed arguments
on the three ineffectiveness claims he sets forth herein. Thus, the record does
not support the court’s determination that Appellant’s ineffectiveness claims
are not adequately developed.
For these reasons, we conclude that the PCRA court erred by dismissing
Appellant’s petition. Consequently, we vacate the court’s May 7, 2019 order
and remand for an evidentiary hearing.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2020
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