Com. v. Evans, M. ( 2021 )

J-A28012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUICE DUPREE EVANS :
:
Appellant : No. 1865 WDA 2019
Appeal from the PCRA Order Entered November 19, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000819-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUICE DUPREE EVANS :
:
Appellant : No. 1866 WDA 2019
Appeal from the PCRA Order Entered November 19, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002901-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUICE DUPREE EVANS :
:
Appellant : No. 1867 WDA 2019
Appeal from the PCRA Order Entered November 19, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000818-2010
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
J-A28012-20
MEMORANDUM BY OLSON, J.: FILED: MARCH 8, 2021
In this consolidated appeal,1 Appellant, Marquice Dupree Evans, appeals
from the November 19, 2019 order dismissing his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.2 We
vacate the order and remand the case with instructions.
The record demonstrates that at docket number
CP-25-CR-0002901-2015 (“CR 2901”), a jury convicted Appellant, on
September 28, 2016, of conspiracy to commit criminal homicide, criminal
homicide (first-degree murder), aggravated assault, burglary, recklessly
____________________________________________
1In a February 3, 2020 per curiam order, this Court consolidated Appellant’s
appeals sua sponte.
2 A review of the notices of appeal demonstrates that each notice contained
all three trial court docket numbers to which the dismissal order pertained.
Counsel for Appellant, in filing a separate notice of appeal at each docket
number, placed a check-mark next to the docket number that corresponded
with that filing and signed each notice of appeal (in other words, the notices
of appeal were not photocopies of an original with check-marks placed at
different docket numbers). An en banc panel of this Court in Commonwealth
v. Johnson, J. held that if an appellant files a separate notice of appeal at
each trial court docket, “[t]he fact that the notices [of appeal] contained [more
than one trial court docket number] is of no consequence.” Johnson, 236
A.3d 1141, 1148 (Pa. Super. 2020), appeal denied, 242 A.3d 304 (Pa. 2020).
The Johnson Court overruled, explicitly, the majority decision of a
three-judge-panel in Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super.
2019) (Strassburger, J. dissenting) that held a notice of appeal was permitted
to contain only one docket number. Johnson, 236 A.3d at 1148. We,
therefore, find that Appellant complied with the mandates of Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018), requiring a separate notice of appeal to
be filed at each trial court docket, and Pennsylvania Rule of Appellate
Procedure 341.
-2-
J-A28012-20
endangering another person, access device fraud, unlawful restraint, and
possession of an instrument of crime in connection with the brutal killing of
the victim.3 On November 10, 2016, the trial court sentenced Appellant to life
imprisonment without parole for criminal homicide and imposed an aggregate,
consecutive sentence of 38½ to 77 years’ incarceration for the remaining,
aforementioned convictions.4 Appellant filed a timely post-sentence motion,
which the trial court granted, in part, as to his request to modify his sentence,
and denied, in part, as to the remaining requests for relief. On November 18,
2016, the trial court resentenced Appellant at CR 2901 to life imprisonment
without parole for criminal homicide and imposed an aggregate, consecutive
____________________________________________
3 18 Pa.C.S.A. §§ 903, 2501(a), 2702(a)(1), 3502(a)(1), 2705,
4106(a)(1)(ii), 2902(a)(1), and 907(a), respectively.
4 At docket number CP-25-CR-0000818-2010 (“CR 818”), Appellant previously
pleaded guilty to one count of flight to avoid apprehension, 18 Pa.C.S.A.
§ 5126(a), on July 6, 2010. Appellant was sentenced to 11½ to 23 months’
incarceration followed by 60 months’ probation.
At docket number CP-25-CR-0000819-2010 (“CR 819”), Appellant previously
pleaded guilty to one count of aggravated assault, 18 Pa.C.S.A. § 2702(a)(4),
on July 6, 2010. Appellant was sentenced to 9 to 18 months’ incarceration
followed by 36 months’ probation. This sentence ran concurrent to the
sentence imposed at CR 818.
As a consequence of Appellant’s conviction at CR 2901, the trial court revoked
Appellant’s probation at CR 818 and CR 819 on November 10, 2016. The trial
court resentenced Appellant to 3½ to 7 years’ incarceration, with credit for
time served of 492 days at CR 818 and to 5 to 10 years’ incarceration at CR
819. The sentence imposed at CR 819 ran consecutively to the sentence
imposed at CR 818. Appellant’s sentence of life imprisonment together with
his aggregate, consecutive term-of-years’ sentence imposed at CR 2901 ran
consecutively to the sentences imposed at CR 818 and CR 819.
-3-
J-A28012-20
sentence of 25 years and 8 months’ to 51 years and 2½ months’ incarceration
for the remaining, aforementioned convictions. Appellant’s revocation
sentences at CR 818 and CR 819 remained the same.
This Court affirmed Appellant’s judgment of sentence on February 26,
2018, and our Supreme Court denied Appellant’s petition for allowance of
appeal on September 5, 2018. Appellant’s judgment of sentence, therefore,
became final on December 4, 2018, upon the expiration of time in which to
file a petition for a writ of certiorari with the United States Supreme Court.
See 42 Pa.C.S.A. § 9543(b)(3) (stating, “a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review”); see also U.S. Sup. Ct. R. 13(1)
(stating, “[a] petition for a writ of certiorari seeking review of a judgment of
a lower state court that is subject to discretionary review by the state court of
last resort is timely when it is filed with the Clerk [of the United States
Supreme Court] within 90 days after entry of the order denying discretionary
review”).
On January 2, 2019, Appellant filed pro se a PCRA petition, his first. The
PCRA court appointed counsel to represent Appellant. Appellant filed an
amended PCRA petition on October 21, 2019, asserting, inter alia, claims that
trial counsel was ineffective for his failure to challenge the legality of
Appellant’s arrest and for his failure to seek suppression of evidence obtained
as a result of Appellant’s alleged illegal arrest. See Amended PCRA Petition,
-4-
J-A28012-20
10/21/19, at ¶7(b)(i). On October 30, 2019, the PCRA court provided
Appellant notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss
Appellant’s petition without a hearing on the grounds, inter alia, that
Appellant’s “claims have been previously litigated and addressed in the [trial
court o]pinions filed March 10, 2017, and August 3, 2017.” Appellant filed
objections, on November 19, 2019, to the PCRA court’s notice of intent to
dismiss the petition without a hearing. On November 19, 2019, the PCRA
court dismissed Appellant’s PCRA petition. This appeal followed.5
Appellant raises the following issues for our review:
1. Were Appellant’s claims previously litigated?
2. Was trial counsel ineffective for failing to seek [the]
suppress[ion of] evidence obtained as a result of
[Appellant’s] illegal arrest[?]
Appellant’s Brief at 6.6
Appellant’s first issue challenges the PCRA court’s dismissal of his
petition on the grounds that the issues raised, therein, were previously
litigated and Appellant, therefore, was not entitled to relief. Appellant’s Brief
at 24-26.
____________________________________________
5 Appellant filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The PCRA court subsequently filed its Rule
1925(a) opinion.
6 Appellant presented a third issue alleging that direct appeal counsel was
ineffective for failing to challenge the sufficiency of the evidence on direct
appeal. This issue, however, has been withdrawn. Appellant’s Brief at 6 and
n.1.
-5-
J-A28012-20
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman, 799
A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review
the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785(Pa. 2014).
A petitioner is eligible for post-collateral relief if the petitioner has
pleaded and proven by a preponderance of the evidence that, inter alia, “the
allegation of error has not been previously litigated or waived.” 42 Pa.C.S.A.
§ 9543(3). Regarding whether the alleged error has been previously litigated
or waived, Section 9544 of the PCRA states,
§ 9544. Previous litigation and waiver
(a) Previous litigation.--For purposes of this subchapter, an
issue has been previously litigated if:
(1) Deleted.
-6-
J-A28012-20
(2) 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; or
(3) it has been raised and decided in a proceeding collaterally
attacking the conviction or sentence.
(b) Issues waived.--For purposes of this subchapter, an issue is
waived if the petitioner could have raised it but failed to do so
before trial, at trial, during unitary review, on appeal[,] or in a
prior state post[-]conviction proceeding.
42 Pa.C.S.A. § 9544.
Here, Appellant contends that the PCRA court erred in determining that
his claims of ineffective assistance of trial counsel were previously litigated.
Appellant’s Brief at 24-25. Appellant concedes that neither trial counsel nor
direct-appeal counsel litigated the underlying issues raised in his
ineffectiveness claim, namely the legality of his arrest and the failure to seek
suppression of evidence obtained therefrom. Id. at 25. Appellant
acknowledges that the failure to raise these underlying issues at trial or on
direct appeal constitutes waiver of the issues. Id. at 25. Appellant asserts,
however, that the underlying issues are reviewable when couched within a
claim of ineffective assistance of counsel. Id. We agree.
The PCRA court found that Appellant’s ineffectiveness claims were
previously litigated and addressed by the trial court’s March 10, 2017 and
August 3, 2017 opinions. See PCRA Court Opinion, 1/14/20; see also PCRA
Court Rule 907 Notice, 10/30/19. A review of the trial court’s March 10, 2017
opinion reveals that the trial court addressed the issues of (1) whether “the
trial court erred and/or abused its discretion when it admitted the text
-7-
J-A28012-20
messages between [Appellant] and his co-defendant” into evidence7 and (2)
whether the Commonwealth failed to present sufficient evidence to support
Appellant’s conviction of the aforementioned crimes. See Trial Court Opinion,
3/10/17, at 63. In its August 3, 2017 opinion, the trial court addressed the
additional issue of whether the trial “court erred in allowing the
Commonwealth to present the text messages between Appellant and [his]
co-defendant [] because they were not properly authenticated.” See Trial
Court Opinion, 8/3/19, at 51. On direct appeal, this Court affirmed Appellant’s
judgment of sentence upon finding that his issue of “whether the trial court
erred and/or abused its discretion in denying [Appellant’s] motion in limine
seeking to limit and/or suppress the statements of the co-defendant and the
text messages[,]” was without merit. Commonwealth v. Evans, 185 A.3d
1146 (Pa. Super. 2018) (unpublished memorandum).
Based upon our review of the record, we discern that the trial court
erred, as a matter of law, in concluding that the underlying issues raised in
the context of Appellant’s ineffective assistance of counsel claims, namely
whether his arrest was illegal and whether the evidence obtained as a result
of his alleged illegal arrest should have been suppressed, were previously
litigated. See 42 Pa.C.S.A. § 9544(a)(2) (stating, an issue has been
previously litigated if “the highest appellate court in which the petitioner could
____________________________________________
7 Due to the nature of the evidence the Commonwealth sought to present at
trial, Appellant and his co-defendant were tried separately. Trial Court Order,
9/7/16.
-8-
J-A28012-20
have had review as a matter of right has ruled on the merits of the issue”).
This Court, as the highest appellate court in which Appellant had the right to
review, did not rule on the merits of the underlying issues raised in Appellant’s
instant PCRA petition. Rather, this Court previously addressed the merits of
Appellant’s claims that the admission of the text messages at trial violated
Appellant’s constitutional rights under the Confrontational Clause in
accordance with the United States Supreme Court’s decision in Bruton v.
United States, 391 U.S. 123 (1968), whether the Commonwealth properly
authenticated the text messages prior to their admission at trial, and whether
the trial court erred in admitting statements made by Appellant’s co-defendant
pursuant to Pennsylvania Rule of Evidence 803(25)(E).8 Ultimately, this Court
found Appellant’s issues to be without merit. This Court did not previously
address the merits of whether Appellant was the subject of an illegal arrest
and whether evidence obtained as a result of that arrest should have been
suppressed. Therefore, the underlying issues raised within Appellant’s
ineffective assistance of trial counsel claims were not previously litigated.
Appellant waived the underlying issues, however, because he failed to
raise these issues before trial, at trial, or on direct appeal. 42 Pa.C.S.A.
§ 9544(b). Nonetheless, our analysis does not end with the determination
____________________________________________
8 Pennsylvania Rule of Evidence 803(25)(E) states that the rule against
hearsay shall not exclude a statement made by a party’s co-conspirator during
and in furtherance of the conspiracy from being offered against the opposing
party. Pa.R.E. 803(25)(E).
-9-
J-A28012-20
that Appellant’s underlying issues were waived. A previously waived claim is
reviewable under the PCRA when couched in terms of a claim asserting that
counsel was ineffective. See Commonwealth v. Jones, 912 A.2d 268, 277
n.10 (Pa. 2006) Here, Appellant raised the underlying waived issues within a
claim of ineffective assistance of trial counsel. Therefore, we proceed to
review Appellant’s ineffective assistance of counsel claims. Id.To warrant relief based on a claim of ineffective assistance of
counsel, a [petitioner] must show that such ineffectiveness ‘‘in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.’’ 42 Pa.C.S.[A.]
§ 9543(a)(2)(ii). We have interpreted this standard to require a
petitioner to prove that: (1) the underlying claim is of arguable
merit; (2) counsel’s performance lacked a reasonable basis; and
(3) the ineffectiveness of counsel caused appellant prejudice.
Counsel will not be deemed ineffective for failing to raise a
meritless claim.
Jones, 912 A.2d at 278 (some citations omitted).
In his amended PCRA petition, Appellant asserted that trial counsel was
ineffective
[1.] for failing to challenge [Appellant’s] arrest, which
[Appellant] asserts was [] illegal as the complaint did not
have an affidavit of probable cause[.]
[2. for] failing to seek to suppress evidence obtained by the
illegal arrest, specifically all statements made by [Appellant]
during his interview with police and all physical evidence
obtained from his person, including but not limited to,:
[a] stating [co-defendant] was pregnant with his
child.
[b] his DNA.
- 10 -
J-A28012-20
[3.] for failing to seek forensic [testing], including DNA testing,
of evidence found at the scene, specifically the partial roll of
duct tape with bloody fingerprints.
Appellant’s Amended PCRA Petition, 10/21/19, at unnumbered page 3
(formatting modified, extraneous capitalization omitted). Appellant requested
an evidentiary hearing in order to, inter alia, present the testimony of trial
counsel in support of his claim of ineffective assistance of counsel. Id. at
unnumbered page 4.
Initially, we must examine whether the record is sufficient to permit
effective appellate review of Appellant’s ineffective assistance claims, given
the PCRA court’s erroneous determination that Appellant’s claims were
previously litigated. See Commonwealth v. Johnson, 64 A.3d 622, 623
(Pa. 2011) (stating, remand is required when an appellate court is unable to
conduct an effective review based upon the PCRA court’s erroneous
determination that the claims were waived or previously litigated and its
failure, as a result of its erroneous determinations, to develop a sufficient
record).
Appellant asserts that he was arrested in connection with the criminal
homicide in July 2015, before a complaint was filed against him and a warrant
was issued for his arrest. Appellant’s Brief at 27. Appellant contends that his
arrest violated Pennsylvania Rule of Criminal Procedure 519, because he was
- 11 -
J-A28012-20
not properly taken before an issuing authority for a preliminary arraignment.9
Id. Appellant further contends that his arrest violated 42 Pa.C.S.A.
§§ 9161-9165 (relating to inter-county detention)10 and 42 Pa.C.S.A.
§ 8952,11 because the arresting officer performed the arrest outside his
primary jurisdiction. Id.
____________________________________________
9 Pennsylvania Rule of Criminal Procedure 519 states, in pertinent part, that
“when a defendant has been arrested without a warrant in a court case, a
complaint shall be filed against the defendant and the defendant shall be
afforded a preliminary arraignment by the proper issuing authority without
unnecessary delay.” Pa.R.Crim.P. 519(A)(1). The requirement “without
unnecessary delay” has been defined as requiring a defendant to be arraigned
within six hours in order to avoid the “inherently coercive nature of prolonged
custodial interrogation.” Commonwealth v. Marinelli, 690 A.2d 203, 214
(Pa. 1997), cert. denied, 523 U.S. 1024 (1998).
10 Section 9162 of the Pennsylvania Judicial Code states,
The arrest of a person may be lawfully made by any peace officer
or a private person without a warrant upon reasonable information
that the accused stands charged in the courts of another county
of this Commonwealth with a crime punishable by death or
imprisonment for a term exceeding one year, but, when so
arrested, the accused must be taken before a judge or issuing
authority with all practicable speed, and complaint must be made
against him under oath setting forth the ground for the arrest as
in section 9161 (relating to arrest prior to requisition), and,
thereafter, his answer shall be heard as if he had been arrested
on a warrant.
42 Pa.C.S.A. § 9162.
11 Section 8952 of the Pennsylvania Judicial Code states,
Any duly employed municipal police officer shall have the power
and authority to enforce the laws of this Commonwealth or
- 12 -
J-A28012-20
The Commonwealth argues that Appellant’s ineffectiveness claims,
including the underlying issues of the legality of his arrest, are premised on
the arresting officer’s trial testimony that Appellant was arrested on July 15,
2015 in Butler County, Pennsylvania, in relation to the aforementioned
crimes.12 Commonwealth’s Brief at 6. The Commonwealth argues that
____________________________________________
otherwise perform the functions of that office anywhere within his
primary jurisdiction as to:
(1) Any offense which the officer views or otherwise has
probable cause to believe was committed within his
jurisdiction.
(2) Any other event that occurs within his primary
jurisdiction and which reasonably requires action on the part
of the police in order to preserve, protect or defend persons
or property or to otherwise maintain the peace and dignity
of this Commonwealth.
42 Pa.C.S.A. § 8952.
12 At trial, the following exchange between the Commonwealth and the
arresting officer occurred with regard to Appellant’s arrest:
[Commonwealth:] Obviously, [Appellant] has been charged
with homicide in this case. When was
[Appellant] arrested on these charges?
[Officer:] I apologize. I believe it was the 15th.
[Commonwealth:] Of July?
[Officer:] Yes.
[Commonwealth:] And regardless, it was sometime mid[-]July?
[Officer:] Yes.
[Commonwealth:] And where was [Appellant] arrested?
- 13 -
J-A28012-20
because Appellant’s ineffectiveness claims relate to pre-trial matters, only “the
information available to [trial counsel] prior to trial is relevant.” Id. The
Commonwealth asserts,
According to these reports, which [trial counsel] had as counsel of
record, Appellant was arrested on July 7, 2015 by [United States]
Marshalls in Butler County, [Pennsylvania] due to warrants in
relation to another case. See Exhibit 1, July 13, 2015 Search
Warrant. Specifically, on June 19, 2015, the Honorable Judge
Shad Connelly issued a bench warrant for Appellant’s failure to
appear for formal arraignment on June 4, 2015[,] related to
Docket Number 874 of 2015. See Exhibit 2. According to that
bench warrant, the [bench] warrant was served on July 8, 2015.
As the [bench] warrant [was] issued by [the Court of Common
Pleas of] Erie County, Appellant was transferred [to Erie County].
While Appellant was a murder suspect at this time and [the
arresting officer] and other members of [the Erie Police
Department] were actively looking for him, he was not arrested
nor was he brought to Erie, [Pennsylvania] in connection with that
investigation. Rather it was this outstanding [bench] warrant that
resulted in his arrest and subsequent transfer. On July 14, 2015,
only once Appellant was brought from Butler[ County],
[Pennsylvania,] to [the] Erie County prison due to that [bench]
warrant, did [the arresting officer] request prison officials bring
____________________________________________
[Officer:] He was picked up in Butler, Pennsylvania
approximately two weeks after the homicide.
[Commonwealth:] And was he then transported to Erie County[,
Pennsylvania]?
[Officer:] Yes.
N.T., 9/27/16, at 123-124.
- 14 -
J-A28012-20
Appellant to the Erie Police Department so that he could be
interviewed.
While Appellant was in custody at that time, he was not arrested
or in custody related to [the victim’s] murder. As such,
Appellant’s claims are meritless.
Id. at 6-7 (extraneous capitalization omitted).13
The record demonstrates that on August 19, 2015, a criminal complaint
was filed at CR 2901 against Appellant, wherein, inter alia, a request was
made that a warrant for his arrest be issued. The issuance of an arrest warrant
does not appear in the record. Appellant was arraigned in the case sub judice
on November 6, 2015. Based upon the criminal complaint and the request for
issuance of an arrest warrant, it appears that Appellant was not arrested in
connection with the aforementioned crimes as of August 19, 2015. This
assumption, however, is contrary to the arresting officer’s trial testimony, in
which the arresting officer stated Appellant was arrested in connection with
the aforementioned crimes on July 15, 2015.
Based upon the current record before us, we are unable to discern the
exact circumstances of Appellant’s arrest for purposes of reviewing his claims
of ineffectiveness of counsel. Furthermore, because the PCRA court erred in
determining that Appellant’s issues were previously litigated, the PCRA court’s
four-sentence Rule 1925(a) opinion has left this Court without any expression
____________________________________________
13The exhibits referenced in the Commonwealth’s brief were not attached to
the brief or contained in a reproduced record and it is unclear where in the
certified record these exhibits may be found.
- 15 -
J-A28012-20
by the PCRA court of its reasons for dismissing Appellant’s collateral claims.
Consequently, we are constrained to vacate the November 19, 2019 order
dismissing Appellant’s PCRA petition without a hearing and remand the case
to the PCRA court. On remand, the PCRA court is instructed to review and
dispose of the petition in light of our decision, including conducting an
evidentiary hearing, if necessary, to address Appellant’s claims challenging
the effectiveness of trial counsel.14
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Murray joins.
Judge McCaffery concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2021
____________________________________________
14 The PCRA court is reminded of its obligation to provide at least a brief
opinion of its reasons for denying, or granting, collateral relief pursuant to the
ineffective assistance of counsel claims raised in Appellant’s PCRA petition,
and to cite specifically the place in the record where such reasons may be
found. See Rule 1925 (a).
- 16 -