Com. v. Basemore, W. ( 2021 )

J-S56011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM BASEMORE :
:
Appellant : No. 2641 EDA 2019
Appeal from the PCRA Order Entered August 13, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0317611-1987
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 16, 2021
Appellant, William Basemore, appeals from the post-conviction court’s
August 13, 2019 order, dismissing as meritless his timely petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
We affirm.
The PCRA court set forth the relevant background of this case as follows:
On the night of December 23, 1986, [Appellant], a recently fired
former employee, broke into the Riverfront Dinner Theater by
removing slats from a window in the men’s room. [Appellant] was
armed with a variety of martial arts weapons, including a knife, a
nearly 4–foot homemade spear secured with black electrical tape,
and a four-point throwing star attached to a yellow rope, as well
as a cutting torch and other tools for cutting into a safe. In the
theater, he confronted the elderly security guard, George Weiss,
and stabbed him multiple times, killing him. He then used a
cutting torch, fueled by oxygen and acetylene, to burn a hole into
the top of the safe in the sales room. The safe caught fire and
was doused with water. From the safe, [Appellant] removed cash
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* Retired Senior Judge assigned to the Superior Court.
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and imitation gold coins inscribed with the company’s name (these
were sold as gift certificates by the dinner theater). Weiss was
found dead the next morning in the sales office, with a blood-
stained knife entangled in his clothing. Police also discovered the
acetylene and oxygen tanks, the spear, martial arts throwing star,
charred money, a charred empty box labeled “gold coins gift
certificates,” a wrench, safety goggles, and a striker used for
lighting welding torches. In the men’s room, police found a chair
under the window and underneath it was a mesh-type sling made
from yellow synthetic rope held together with black electrical tape.
See Commonwealth v. Basemore, [582 A.2d 861] ([Pa.]
1990).
The police traced the serial numbers on the fuel tanks to a local
company that sold this type of equipment. The business records
showed that [Appellant] bought the acetylene bottles on
November 24, 1986[,] and the oxygen tank on December 10,
1986, which he took to the store for repair the very next day. The
martial arts weapons recovered from the scene were traced to
Asian Martial Arts World store, where employees identified
[Appellant] from a photo array as the customer who purchased
these items. Police then executed a search warrant and arrest
warrant at [Appellant’s] home. When police arrived, [Appellant]
claimed he was his sister’s boyfriend and that he hadn’t seen
“William Basemore” since 3 a.m.[,] when he was asleep on the
couch. The police, however, noticed [Appellant’s] distinguishing
scar on his left forearm and placed him under arrest. [Appellant]
then blurted out that “he worked at the Riverfront and there’s lots
of shit going down there and he wanted to tell [the police] about
it.” While searching [Appellant’s] bedroom, police recovered two
shoe boxes underneath [Appellant’s] bed containing imitation gold
coins from the theater, a receipt dated December 10, 1986[,] for
the purchase of an oxygen tank, a wallet containing [Appellant’s]
identification card as well as more imitation gold coins, and $90 in
charred US currency. In his mother’s bedroom, police found
several knives wrapped in newspaper and yellow cord. In the
basement, police found a multitude of martial arts weapons,
including a homemade spear and throwing star on a yellow cord
that were identical to those found at the crime scene. Police also
found bloodstained coveralls that were later tested; the blood was
consistent with the decedent’s blood type. [Id.] at [865]. Prior
to the second trial, these samples were tested for DNA. A partial
DNA profile was recovered from a blood stain on the coveralls and
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this profile was consistent with the decedent’s DNA profile.
(N.T.[,] 4/3/03, … 48).
Based upon this overwhelming evidence of guilt, on May 3, 1988,
a jury found [Appellant] guilty of first-degree murder, robbery,
burglary, and possession of an instrument of crime. On May 4,
1988, the jury unanimously voted to sentence him to death.
[Appellant] appealed his judgment of sentence. It was affirmed
by the Pennsylvania Supreme Court on November 16, 1990.
Subsequently, [Appellant] filed a PCRA petition and was awarded
a new trial after a video surfaced showing Jack McMahon, Esquire
(the prosecutor at [Appellant’s] original trial), recommending
striking prospective jurors based upon racial stereotypes. [See
Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000).] At
[Appellant’s] second jury trial, the jury found [Appellant] guilty of
first[-]degree murder and related offenses. He was sentenced to
life in prison on November 19, 2003. The Superior Court affirmed
this conviction[, Commonwealth v. Basemore, 875 A.2d 350(Pa. Super. 2005),] and on March 7, 2006, the Pennsylvania
Supreme Court denied his petition for allowance of appeal.
[Commonwealth v. Basemore, 895 A.2d 548 (Pa. 2006).]
On February 5, 2007, [Appellant] filed his first PCRA petition
following retrial. On October 21, 2011, while awaiting counsel to
be appointed, [Appellant] filed an additional PCRA petition. On
October 4, 2017, this matter was reassigned to this [c]ourt. On
October 5, 2017, David Rudenstein, Esquire[,] was appointed [as]
PCRA counsel. On March 11, 2017, counsel filed an Amended
Petition. On September 5, 2018, the Commonwealth filed its
Motion to Dismiss. On February 20, 2019, counsel filed a
Supplemental Petition. [1] On June 10, 2019, the Commonwealth
file[d] its Reply to the Supplemental Petition. On June 10, 2019,
this [c]ourt sent [Appellant] a Notice of Intent to Dismiss Pursuant
to [Pa.R.Crim.P.] 907. On July 16, 2019, [Edward J.] Foster,
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1In that supplemental petition, Attorney Rudenstein mentioned that, “[w]hen
we were last in [c]ourt, [the PCRA court] expressed some concern that I had
not thoroughly reviewed the file and you directed me to do so. I have done
so.” Supplemental Petition, 2/20/19, at 1 (unnumbered). Then, therein,
Attorney Rudenstein purported “to give more explanation” for his conclusions.
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Esquire[,] entered his appearance as PCRA counsel.[2] On August
12, 2019, [Attorney] Foster filed a reply to the [Rule] 907
Notice.[3, 4] On August 13, 2019, this [c]ourt dismissed
[Appellant’s] petition based upon lack of merit. On September 11,
2019, [Appellant] filed a Notice of Appeal to [the] Superior
Court.[5]
PCRA Court Opinion (PCO), 12/30/20, at 1-4 (some brackets in original).
Presently, Appellant raises a single issue for our review:
Whether the court abused its discretion in dismissing the PCRA
[petition] after having previously admonished [prior,] court[-
]appointed counsel for not thoroughly reviewing the file and
requiring him to prepare further filings, which contained factual
errors and demonstrated no further knowledge of the case.
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2 Though Attorney Foster did not enter his appearance until July 16, 2019, he
“was present in court for the formal dismissal [of Appellant’s petition on July
10, 2019,] and requested that [the PCRA court] hold off on dismissing the
petition and grant a brief period of time [for him] to enter his appearance and
to get up to speed on the case and respond to the [Rule] 907 letter, which
[the PCRA] court kindly granted.” Response to Rule 907 Notice, 8/12/19, at
2 (unnumbered). The docket reflects that the PCRA court continued the formal
dismissal proceeding until August 12, 2019, and in that docket entry stated
“[n]o further [c]ontinuances.” Docket Entry No. 122 (dated 7/10/19).
3 In that reply, Attorney Foster requested that the PCRA court “withdraw the
[Rule] 907 intent to dismiss letter and allow [him] sufficient time to fully
review all of the evidence in this case, all of the notes of testimony from both
trials, and have a full discourse with [Appellant,] so as to allow the preparation
of a fully fleshed out[] amended petition for relief pursuant to the [PCRA].”
Response to Rule 907 Notice at 2 (unnumbered). Therein, he specifically
asked the PCRA court to grant Appellant a 90-day extension to supplement
his petition. Id. at 1.
4Attorney Foster also attended the formal dismissal proceeding on August 12,
2019.
5 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and it filed a Rule
1925(a) opinion. Though the PCRA court did not address the issue Appellant
raises on appeal in its Rule 1925(a) opinion, we can determine the basis for
its decision regarding that issue from the record.
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Appellant’s Brief at 6.
Appellant argues that he “was not afforded adequate PCRA
representation and that the court abused its discretion in not allowing newly[-
]retained counsel to review the case, the evidence, and the claims being made
by … Appellant to assist him in what may be one of his last chances to overturn
what he claims to be a wrongful conviction of an innocent man.” Id. at 9. His
entire argument on this issue consists of the following:
Appellant was not afforded adequate, effective representation at
the PCRA level and a fact that is really driven home by the fact
[sic] that [the PCRA court] had to order [prior,] court[-]appointed
PCRA counsel to go back and do another review of the file at a
hearing on November 20, 2018. In [its] opinion[,] [the PCRA
court] really [drove] home [its] belief that the evidence against
Appellant was overwhelming and that the issues raised in the
PCRA petition lacked merit. However, the argument here is that
this case should never have reached a determination on the merits
as the record clearly reflects that the handling of this PCRA was
wholly inadequate from just about every standpoint possible.
The pro se petition was filed in 2007[,] and it sat without any
review or any attention whatsoever for two years before being
targeted by the court for Initial Review Status in May of 2009[,]
after Appellant filed an amended petition that February. It then
sat for another two years before Appellant decided to file a
subsequent amended petition on October 21, 2011. The petition
then sat untouched by the courts again for another six years until
finally on October 5, 2017[,] Mr. Rudenstein was appointed as
PCRA counsel. Putting this in perspective, George W. Bush was
the President of the United States a little over half way through
his second term when the PCRA [matter] was initiated, Barrack
Obama served the eight years of his [p]residency, and Donald
Trump was wrapping up the first year of his [p]residency by the
time counsel was appointed and this PCRA [matter] got some
attention from the courts. What’s the relevance of all of this? On
August 11, 2019[,] undersigned counsel filed a [Rule] 907
response, which simply present[ed] the known inadequacies of
the representation of Mr. Rudenstein and made one simple
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request, a withdrawal of the [Rule] 907 dismissal and sufficient
time to adequately and effectively review all the claims raised by
… Appellant in his pro se petition. The pro se petition that
Appellant spent twelve years waiting for his day in court [sic] and
[the PCRA court] felt that he couldn’t be afforded another ninety
or so days[,] so that a genuine investigation of the issues he
raised as well as his claims of actual innocence [sic].
Appellant’s Brief at 9-10.
We wholeheartedly agree with Appellant that the delay in this case,
apparently caused by the PCRA court (although not the current judge assigned
to the matter), is unreasonable and inexcusable. However, “[t]he decision to
grant a continuance is within the sound discretion of the [lower] court, and
we will reverse only if the court has abused its discretion.” Commonwealth
v. Paddy, 15 A.3d 431, 470 (Pa. 2011) (citations omitted). Here, Appellant
has not demonstrated that the PCRA court abused its discretion.
To begin, after continuing the formal dismissal proceeding until August
12, 2019, the PCRA court warned Appellant in its July 10, 2019 docket entry
that there would be “[n]o further [c]ontinuances.” Docket Entry No. 122
(dated 7/10/19). In addition, our review of the transcript from the August 12,
2019 formal dismissing proceeding shows that the following occurred there:
[Court Crier]: You Honor, [Attorney] Foster is here on Case No. 5,
William Basemore, PCRA.
[Attorney Foster]: Good morning, Your Honor.
[PCRA court]: Good morning.
[Attorney Foster]: Edward J. Foster for William Basemore. I did
file this [response to the Rule 907 notice] this morning, Your
Honor. I just passed a copy to the [Commonwealth]. This was
here today for a formal dismissal on the – after the 907 letter that
went out in June.
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(Brief pause.)
[PCRA court]: Okay. I have, again, reviewed the documents in
this case. [Appellant] submitted a letter today – filed today [sic]
asking for more time to additionally supplement [Appellant’s]
counsel[ed] PCRA petition. And after review of the documents
again, I am going to deny that request. I did[,] back on July
10th[,] allow [Appellant’s] counsel to enter [his appearance]. I
gave him 30 days then to … file any additional supplements that
he wished, but I’m not going to give this any more continuances.
This case is quite old.
[Attorney Foster]: I understand, Your Honor.
N.T., 8/12/19, at 3-4. Aside from referencing his response to the Rule 907
notice, Attorney Foster did not make any specific argument in support of an
extension of time at the proceeding, nor did he mention what kind of claim
Appellant hoped to raise by supplementing his counseled petition.
Further, the Commonwealth persuasively observes that,
the PCRA [c]ourt did more than afford [Appellant] the twenty
days[’] notice contemplated by the rules of procedure before
dismissing his petition. Pa.R.Crim.P. 907. Rather, after the
twenty days had passed, the court waited another ten days and
then granted counsel an additional thirty days beyond that to file
a response. But counsel remained silent until after the new
deadline had come and gone. Moreover, even when he belatedly
filed a letter with the court asking for still more time, he did not
make an offer of proof or even identify a particular claim of
potential merit that he wished to explore in greater detail.
Accordingly, one cannot say that the court exceeded the limits of
its discretion by denying that request.
In his brief, [Appellant] does not cite a single case in support of
his appellate argument. Instead, he asserts in boilerplate fashion
that his prior PCRA counsel’s representation was “wholly
inadequate from just about every standpoint possible” (Brief for
Appellant[ at] 9). That claim is not sufficiently developed to show
that prior PCRA counsel’s performance was actually deficient,
much less that any possible deficiency prejudiced [Appellant] by
forfeiting some underlying meritorious claim of ineffective
assistance on trial counsel’s part. See, e.g., Commonwealth v.
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Bond, 819 A.2d 33, 39-40 (Pa. 2002) (rejecting generalized
allegations of ineffective assistance on collateral review).
[Appellant] also notes that an inordinate delay occurred between
when he filed his original pro se PCRA petition and when prior
PCRA counsel was appointed (Brief for Appellant[ at] 9-10). While
that is troubling, it has no bearing on the instant claim. The fact
that this litigation has gone on for too long is not reason to extend
it further.
Commonwealth’s Brief at 7-9.
We agree with the Commonwealth’s argument. Most problematically,
Appellant does not indicate what particular claim of potential merit he hoped
to pursue by supplementing his petition. He also provides no legal authority
in support of his argument that the PCRA court abused its discretion in denying
him a continuance. Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super.
2014) (“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority. … This Court will not act as counsel and will not develop
arguments on behalf of an appellant.”). Thus, based on the foregoing reasons,
we discern no abuse of discretion by the PCRA court in denying Appellant’s
request for a continuance. Consequently, we affirm the PCRA court’s order
dismissing his petition for lack of merit.6
Order affirmed.
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6Appellant does not make any argument regarding the merits of his petition
and, therefore, we do not address them.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2021
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