Com. v. Salata, G. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GEORGE JOSEPH SALATA :
:
Appellant : No. 465 MDA 2020
Appeal from the PCRA Order Entered March 10, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001148-2017
BEFORE: NICHOLS, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 09, 2021
George Joseph Salata appeals from the order entered denying his Post
Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We
conclude Salata failed to preserve some of the issues he seeks to argue on
appeal, and waived others. We therefore affirm.
In February 2018, Salata was convicted of Aggravated Assault (causing
serious bodily injury), Aggravated Assault (causing bodily injury with a deadly
weapon), and Criminal Attempt (homicide). 18 Pa.C.S.A. §§ 2702(a)(1),
2702(a)(4), and 901 respectively. The charges arose from an incident in which
Salata approached the victim from behind on a public street and shot him in
the face. The trial court sentenced him to an aggregate sentence of 240 to
480 months’ incarceration. Salata filed a post-sentence motion, which the trial
court denied. He filed a timely appeal, and we affirmed the judgment of
sentence in April 2019.
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In October 2019, Salata filed a pro se PCRA petition,1 and the court
appointed counsel. Counsel filed a petition to withdraw and a Turner/Finley2
letter, in which he stated that the claims Salata raised in his pro se PCRA
petition – that aspects of the trial testimony were inaccurate and that trial
counsel was ineffective for failing to object to the admission of photographs,
challenge the search of his apartment and seizure of his clothes and firearms,
call three witnesses, and challenge the search of his phone – lacked merit.
On February 18, 2020, the court issued notice of its intent to dismiss
the PCRA petition without a hearing. See Pa.R.Crim.P. 907. That same day,
in a separate order, it granted counsel’s petition to withdraw and, in doing so,
stated that “an independent review of the record conducted by [the c]ourt
which concurs with counsel’s finding that [Salata’s] [PCRA motion] is without
merit.” Order, 2/18/20. On March 10, 2020, the court dismissed the PCRA
petition.
On March 2, 2020, before the final order was entered, Salata filed a
notice of appeal, and attached to that notice the order granting counsel’s
petition to withdraw.
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1The certified record does not contain a copy of the pro se PCRA petition. The
docket entry noted that Salata filed it, and includes this note: “Sent packet to
Judge Vough Hogan.” Docket, No. CP-40-CR-0001148-2017.
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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The court issued an order requiring Salata to file a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) and to serve a copy on the court and the Luzerne County
District Attorney. The certified record does not contain a Rule 1925(b)
statement, and the docket does not reflect that Salata filed a Rule 1925(b)
statement.
In its opinion issued pursuant to Rule 1925(a), the court found that
Salata waived any issues on appeal by failing to file the Rule 1925(b)
statement. The court noted that Salata provided the court with a copy, but did
not file it. Trial Court Opinion, filed May 8, 2020, at 2. The court further found
that in the statement Salata raised issues “regarding sufficiency of the
evidence, sentencing, suppression, admission of evidence and the
ineffectiveness of trial and appellate counsel.” Id. The court concluded that
because he did not raise any issues regarding the order granting PCRA
counsel’s petition to withdraw, which was the order on appeal, he waived the
claims. Id. at 2-3.
Salata asserts the following issues on appeal:
1. Whether the Commonwealth proved by sufficient
evidence that [Salata] committed the crimes of Aggravated
Assault and Criminal Intent-Criminal Homicide.
2. Whether the [trial] court abused its discretion in
sentencing [Salata].
3. Whether [trial counsel] was ineffective for not seeking an
suppression hearing of the photos depicting misleading
conditions, shotgun used as misleading evidence presented
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to jurors by testimony of the State Forensic Officer as not
being used.
4. Whether [trial counsel] erred in not objecting to ALL
unsubstantiated evidence.
5. Whether [a]ppellate [c]ounsel demonstrated same
ineffectiveness as [trial counsel].
Salata’s Br. at 1.
Before turning to Salata’s issues, we must first deal with two other
matters, one relating to whether he properly “filed” his Rule 1925(b)
statement, and the other relating to whether he appealed from the wrong
order. Regarding the first issue, the Commonwealth states that Salata
“‘provided’ a Concise Statement, but did not file it.” Commonwealth’s Br. at
5. In response, Salata filed a motion in this court, to which he attached three
cash slips from March 2020, for payment of mailing the Rule 1925(b)
statement to the court clerk, the DA’s office, and the PCRA judge.
Under the prisoner mailbox rule, pro se legal filings by incarcerated
litigants are deemed filed “on the date [the filing] is delivered to the proper
prison authority or deposited in the prison mailbox.” Thomas v. Elash, 781
A.2d 170, 176 (Pa.Super. 2001). The determination of whether a filing is
timely under the prisoner mailbox rule requires that the petitioner prove he
timely gave the filing to prison authorities for mailing. See Commonwealth
v. Chambers, 35 A.3d 34, 40 (Pa.Super. 2011). Here, we decline to remand
for a determination of the date on which Salata gave the Rule 1925(b)
statement to prison authorities, which would require a determination of facts.
Rather, we will assume for purposes of the appeal, without deciding, that
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Salata filed the Rule 1925(b) statement as required, because his appeal fails
in any event. See Chambers, 35 A.3d at 40 (finding remand for an
opportunity to presented evidence appended to appellate brief would be futile
where the substantive issues lacked merit).
We next must determine whether Salata has appealed only from the
interlocutory order granting counsel’s motion to withdraw, as the PCRA court
concluded, rather than from the final order denying his PCRA petition. Salata
filed the appeal following the grant of the motion to withdraw, which was on
the same day as the court filed of the Rule 907 notice. In other cases, we have
declined to quash an appeal that an appellant filed prematurely following the
issuance of the Rule 907 notice, and instead treated it as an appeal from the
subsequent final, appealable order. See Commonwealth v. Swartzfager,
59 A.3d 616, 618 n.3 (Pa.Super. 2012). We apply similar reasoning here and
will not quash. We now turn to the issues raised in the appellate brief.
Salata’s first two issues – that the Commonwealth presented insufficient
evidence to support the verdict and the trial court abused its discretion in
sentencing him – are waived because they were not raised before the PCRA
court. Furthermore, they are not cognizable under the PCRA.
Salata’s next two issues argue that his trial counsel was ineffective for
not seeking a suppression hearing regarding the photographs and for not
objecting to unsubstantiated evidence. In his fifth issue, he claims appellate
counsel also was ineffective. Salata presents minimal argument on these
issues, and cites to no legal authority in support of the claims. He conclusorily
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asserts that if counsel had filed a motion to suppress a supplemental narrative
of a police detective than the outcome would have favored Salata. Salata’s Br.
at 10. He further states that “had counsel filed a motion to suppress the
Commonwealth’s insufficient evidence of the Remington Winchester model
870 that Corporal Joseph Gober of P.S.P. forensic services testifies that (he)
doesn’t know if this gun was actually used during the alleged incident.” Id.Salata has waived the issues by failing to present a developed
argument, in separate sections of the brief, with citations to relevant case law.
Commonwealth v. Knight, 241 A.3d 620, 637 (Pa. 2020) (noting that an
issue is waived where appellant does not include argument in brief); Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part--in distinctive
type or in type distinctively displayed--the particular point treated therein,
followed by such discussion and citation of authorities as are deemed
pertinent”). We further note that these issues also were not raised in the
Turner/Finley letter or a response thereto.3
Order affirmed.4
____________________________________________
3 To the extent Salata is challenging the recovery of the firearm during the
search, we agree with PCRA counsel and the PCRA court that the search was
conducted pursuant to a search warrant, and we note that Salata has not
argued that the warrant lacked probable cause. To the extent Salata is
challenging the admission of contradictory information, we conclude such a
claim lacks merit, as a jury as fact finder is to weigh the evidence and assign
it whichever weight it deems appropriate.
4 Salata’s “Motion in Reply to Commonwealth’s Brief” denied as moot.
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Judge Musmanno joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/09/2021
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