Com. v. Scott, T. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS ANTHONY SCOTT
Appellant No. 1354 WDA 2014
Appeal from the PCRA Order June 26, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003918-2011
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2015
Appellant, Thomas Anthony Scott, appeals pro se from the order
entered on June 26, 2014, dismissing his petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court previously summarized the evidence presented during
Appellant’s jury trial. As the trial court explained:
City of Pittsburgh Police Sergeant Jason Snyder, a narcotics
detective, testified that[,] on March 9, 2011, he was on
patrol in a high crime area of Pittsburgh while in an
unmarked police vehicle with Detective Jedidiah Pollock.
Detectives Ed Fallert and Mark Goob were trailing him in a
second unmarked vehicle. Sergeant Snyder heard multiple
gunshots to his right. He turned and saw a male in dark
clothing in an alley firing a handgun. Sergeant Snyder, who
testified he was wearing his badge around his neck, exited
his vehicle and loudly declared “Pittsburgh Police, drop your
weapon.” The assailant, identified by the Sergeant as
Appellant, immediately turned and fired more than eight
rounds at the Sergeant. Sergeant Snyder returned fire and
hit Appellant, causing him to fall face forward.
*Retired Senior Judge assigned to the Superior Court.
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Detective Mark Goob also testified that he observed
Appellant shoot at Sergeant Snyder. He heard the shots
and saw the muzzle flash. After Appellant was hit,
Detective Goob approached him to determine if Appellant
remained a threat and to render medical aid if possible.
During his cautious approach, Detective Goob repeatedly
instructed Appellant to drop the weapon[,] which the
Detective could see in Appellant’s hand. Instead, while
Detective Goob was approximately five yards away,
Appellant turned, pointed his gun at Detective Goob and
started to fire again. Detective Goob heard the gun
discharge and returned fire, hitting Appellant in the leg.
The [Detective] saw the slide of Appellant’s gun lock back,
an indication that Appellant was out of bullets. Appellant
then said words indicating that he quit or was done and
dropped the gun.
Detective Edward Fallert testified similarly to having
observed Appellant turn and fire at Sergeant Snyder. Once
Sergeant Snyder shot Appellant to the ground, Detective
Fallert heard Detective Goob repeatedly shout to Appellant
to drop the gun. Instead of complying with the
[Detective’s] demand, Detective Fallert observed Appellant
roll with gun in hand toward Detective Goob. After getting
shot by Detective Goob, Detective Fallert saw Appellant
drop the gun and surrender, the gun in slide-lock, open
chamber position. Detective Fallert also noted an odor of
alcohol emanating from Appellant.
Detective Jeffrey Palmer recovered the Glock pistol, .40
caliber belonging to Appellant and testified that the gun was
recovered with the slide in the locked position.
Detective Scott Evans arrived after the shooting and
recovered shell casings at the scene. Eight of the casings
were brass in color, which would not have been consistent
with police-issued ammunition. Other casings recovered at
the scene matched in caliber, make[,] and color with
standard issue police “duty ammo.” Detective Evans
concluded that some casings were fired by police-issued
weapons and others were not. Upon further research,
[D]etective Evans discovered that the gun found at the
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scene was owned by Appellant[,] who did not have a license
to carry a firearm on his person.
Trial Court Opinion, 9/12/12, at 3-4 (internal citations omitted).
The Commonwealth charged Appellant with numerous crimes arising
out of the above events and, following a trial, the jury found Appellant guilty
of two counts each of assault of a law enforcement officer, aggravated
assault, and recklessly endangering another person.1 On August 29, 2011,
the trial court sentenced Appellant to serve an aggregate term of 40 to 80
years in prison for the convictions.
We affirmed Appellant’s judgment of sentence on June 18, 2013 and,
on November 19, 2013, our Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Scott, 82 A.3d 463 (Pa. Super.
2013) (unpublished memorandum) at 1-8, appeal denied, 80 A.3d 776 (Pa.
2013).
On April 30, 2014, Appellant filed a timely, pro se PCRA petition,
wherein Appellant raised the following claims for relief:
My counsel was ineffective in presenting my case
[because:]
[1.] [C]ounsel did not present[] know[n] evidence or
argument that [Appellant] did not fire at [the] officers[;]
medical [records] show that [Appellant] was shot from
behind and could not have been facing [the] officers[;]
[2.] Counsel did not argue that the photographs show that
[Appellant] fired nine times before [the] officers got out [of
____________________________________________
1
18 Pa.C.S.A. §§ 2702.1(a), 2702(a)(1), and 2705, respectively.
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their] cars and could not have fired as many times as
said[;]
[3.] Perjured testimony affected the judgment of the jury[;]
perjured testimony that [Appellant] turn[ed] around and
fired at [the] officer and was shot in the chest violated
[Appellant’s] due process rights.
Appellant’s PCRA Petition, 4/30/14, at 4.
The PCRA court appointed counsel to represent Appellant. However,
on June 4, 2014, appointed counsel filed a “no merit” letter and a petition to
withdraw as counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc).
On June 6, 2014, the PCRA court issued notice that it intended to both
grant counsel’s petition to withdraw and dismiss Appellant’s PCRA petition in
20 days, without holding a hearing. See Pa.R.Crim.P. 907(1). On June 26,
2014, the PCRA court finally granted counsel’s petition to withdraw and
dismissed Appellant’s PCRA petition.
Appellant filed a timely, pro se notice of appeal on July 23, 2014 and
the PCRA court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).2 Appellant complied and, within his Rule 1925(b)
statement, Appellant listed the following claims:
____________________________________________
2
Appellant’s notice of appeal was time-stamped and entered on the docket
on July 28, 2014. Yet, the envelope that Appellant used to mail the notice of
appeal is postmarked July 23, 2014. Thus, in accordance with the prisoner
(Footnote Continued Next Page)
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1. Trial counsel was ineffective for failing to provide medical
records at trial. Trial Counsel failed to provide medical
record[s] to support testimony of [Appellant] and disprove
testimony of [C]ommonwealth witnesses.
2. Trial counsel was ineffective for failing to argu[e] the
forensic photograph. Trial counsel failed to argue forensic
photograph [which conflicted] with testimony of the
[C]ommonwealth witnesses.
3. [Appellant’s] due process right was violated by perjured
testimony. Multiple witnesses of the [C]ommonwealth
testified falsely violating [Appellant’s] due right process.
Appellant’s Rule 1925(b) Statement, 9/17/14, at 1.
On appeal, Appellant raises the following claims:
1. Whether [the] PCRA [court] erred when [it] allow[ed]
PCRA counsel to withdraw after filing [the] Turner/Finley
“no merit” letter, and dismissing [Appellant’s] pro se
petition without a hearing, depriv[ing Appellant] of a
substantial right to amend defective pro se petition[?]
2. PCRA counsel was ineffective by failing to amend pro se
petition to argue trial counsel’s ineffectiveness in failing to
employ expert’s investigation into the exculpatory and
impeachment evidence presented by the Commonwealth, to
[bolster] defense trial strategy involving [Appellant’s]
testimony and credibility.
3. PCRA counsel was ineffective by failing to argue trial
counsel’s ineffectiveness in neglecting to suppress
[Appellant’s] statement.
_______________________
(Footnote Continued)
mailbox rule, “Appellant’s pro se [notice of appeal] is deemed to be filed
when it was handed to prison officials” for mailing – which was, at the latest,
July 23, 2014. Commonwealth v. Ousley, 21 A.3d 1238, 1241 n.2 (Pa.
Super. 2011).
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4. PCRA counsel was ineffective by failing to argue
[Appellate] counsel’s ineffectiveness in neglecting to
preserve and raise for appellate review the issue that the
sentence was manifestly excessive and unreasonable.
Appellant’s Brief at 5, 16, 34, and 40.
All of Appellant’s claims on appeal are waived, as Appellant did not
include the claims in his PCRA petition or in his court-ordered Rule 1925(b)
statement. Commonwealth v. McGill, 832 A.2d 1014, 1021-1022 (Pa.
2003) (a claim that PCRA counsel was ineffective is separate and distinct
from a claim that trial counsel was ineffective); Commonwealth v. Rigg,
84 A.3d 1080, 1085 (Pa. Super. 2014) (“where the new issue is one
concerning PCRA counsel’s representation, a petitioner can preserve the
issue by including that claim in his Rule 907 response or raising the issue
while the PCRA court retains jurisdiction. Since [a]ppellant did not seek
leave to amend his petition or otherwise preserve his . . . PCRA counsel
ineffectiveness claims, he waived the issues he raised for the first time in his
[Rule] 1925(b) statement[]”) (internal citations omitted); Commonwealth
v. Jacobs, 727 A.2d 545, 547 (Pa. 1999) (“issues [that] were not raised in
[an] original PCRA petition, counsel’s amended petition, or the oral
amendments made to [a] petition before the PCRA court . . . are waived”);
Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)
s]tatement . . . are waived”); Commonwealth v. Castillo, 888 A.2d 775,
780 (Pa. 2005) (“[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement
will be waived”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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