Com. v. Andrews, D. ( 2023 )

J-A12014-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL ANDREWS :
:
Appellant : No. 1232 EDA 2022
Appeal from the PCRA Order Entered April 11, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007797-2014
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED JULY 13, 2023
Appellant, Daniel Andrews, appeals from the order entered on April 11,
2022, which dismissed his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court ably summarized the underlying facts of this case:
On the morning of June 19, 2014, [Appellant] was in the
home of Michael Nesmith with Henry Crosby and Laticj
McKnight. The four shared a "blunt" of K2, which is synthetic
marijuana. Shortly after, Ms. McKnight left the room to go
upstairs while Mr. Crosby and Mr. Nesmith continued to play
a video game. After asking Mr. Nesmith for a cigarette,
[Appellant] stood up, went to the door, then turned and fired
a gun multiple times at the other two. Mr. Crosby was struck
in the abdomen, where the bullet fractured his ribs, lacerated
his liver, and injured his diaphragm. Mr. Nesmith was struck
in the thigh, but was able to flee upstairs where he told Ms.
McKnight what had happened and called 9-1-1.
After shooting the two victims, [Appellant] fled the house and
jumped on the back of a passing fire truck. The firemen
confronted [Appellant] and called for police assistance, but
J-A12014-23
[Appellant] began walking down the street before the police
arrived. The firemen flagged down some police officers, and
while explaining to them what had occurred, a fireman saw a
gun lying on the street 10 to 15 feet behind where they had
stopped the truck. The gun was registered to [Appellant’s]
fiancée, and [Appellant] later admitted to carrying it without
a license and using it to shoot Mr. Crosby and Mr. Nesmith.
The police found [Appellant] shortly after and took him into
custody. A few hours after being taken into custody,
[Appellant] told the detective that he had shot the two
victims after smoking K2.
PCRA Court Opinion, 8/17/22, at 2-3 (citations omitted).
A jury found Appellant guilty of persons not to possess firearms,
firearms not to be carried without a license, and carrying firearms on the public
streets of Philadelphia.1 On April 13, 2017, the trial court sentenced Appellant
to serve an aggregate term of eight to 20 years in prison for his convictions.
We affirmed Appellant’s judgment of sentence on June 21, 2019 and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on December 23, 2019. Commonwealth v. Andrews, 213 A.3d 1004(Pa. Super. 2019), appeal denied, 222 A.3d 376 (Pa. 2019).
Appellant filed a timely, pro se PCRA petition on September 15, 2020.
The PCRA court appointed counsel to represent Appellant during the
proceedings and counsel filed an amended petition on Appellant’s behalf.
Within the petition, Appellant claimed that his trial counsel (hereinafter “Trial
Counsel”) was ineffective for “fail[ing] to effectively argue a Rule 600 motion
____________________________________________
1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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J-A12014-23
on behalf of [Appellant]” and “fail[ing] to object to Brady violations that
occurred at trial.”2 Amended PCRA Petition, 12/14/20, at 2.
On January 18, 2022, the PCRA court provided Appellant with notice
that it intended to dismiss his petition in 20 days, without holding a hearing.
Appellant did not respond to the PCRA court’s notice and, on April 11, 2022,
the PCRA court finally dismissed Appellant’s petition. PCRA Court Order,
4/11/22, at 1. Appellant filed a timely notice of appeal to this Court. He raises
three claims on appeal:
1. Did the [PCRA] court err, abuse its discretion, and/or make
a mistake of law when it denied, as a matter of law,
[Appellant’s] PCRA claim that [Trial Counsel] was ineffective
because he failed to properly argue a Rule 600 motion?
2. Did the [PCRA] court err in its Rule 907 dismissal notice
when it articulated that [Appellant] had the burden of proving
the Commonwealth’s due diligence regarding Rule 600?
3. Did the [PCRA] court err, abuse its discretion, and/or make
a mistake of law when it denied, as a matter of law,
[Appellant’s] PCRA claim that [Trial Counsel] was ineffective
for not objecting to Brady violations by the Commonwealth,
including the Commonwealth’s representation that the gun
was not tested for fingerprints, ballistics evidence and the
Commonwealth’s statement that nothing was ever done with
the crime scene?
Appellant’s Brief at 5-6.
We have reviewed the briefs of the parties, the relevant law, the certified
record, and the opinion of the able PCRA court judge, the Honorable Charles
J. Cunningham, III. We conclude that Appellant is not entitled to relief in this
____________________________________________
2 See Brady v. Maryland, 373 U.S. 83 (1963).
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J-A12014-23
case, for the reasons expressed in Judge Cunningham’s August 17, 2022
opinion. Therefore, we affirm on the basis of Judge Cunningham’s thorough
opinion and adopt it as our own. In any future filing with this or any other
court addressing this ruling, the filing party shall attach a copy of Judge
Cunningham’s August 17, 2022 opinion.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2023
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Circulated 06/20/2023 03:21 PM
COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA
1232 EDA 2022
V.
CP-51-CR-0007797-4014 :~
DANIEL ANDREWS
(Ji
OPINION
STATEMENT OF THE CASE
Defendant Daniel Andrews (hereinafter "Defendant"), by and through his attorney,
William Allan Love, Esquire, appeals this Court's April 11, 2022 Order denying relief under the
Post-Conviction Relief Act (hereinafter "PCRA").
"PCRA). We file this Opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a) and ask this Court to affirm.
PROCEDURAL HISTORY
On June 20, 2014, Defendant was charged with attempted murder, aggravated assault,
simple assault, recklessly endangering another person, and various violations of the Uniform
Firearm Act.11 Due to discovery and Defendant's requests for various continuances, trial was
delayed for over two years. As a result, Defense filed a Rule 600 motion to dismiss which this
Court denied prior to trial on February 6, 2017. On February 8, 2017, a jury found Defendant
guilty of possession of firearm prohibited, firearms not to be carried without a license, carrying
1
1
$8 2502(b); 2702(a); 270l(a);
18 Pa. C.S.A. §§ 2701(a); 2705; 6105(a); 6106(a); 6108 respectively.
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0083_Opinion
firearms in public in Philadelphia, and possession of an instrument of crime. 2 On April 13, 2017,
Defendant was sentenced to eight to twenty (8-20) years of incarceration. Defendant appealed-
arguing that this Court erred in denying his Rule 600 motion, the Superior Court affirmed. On
December 23, 2019 the Supreme Court denied review of direct appeal and affirmed this Court's
ruling and Defendant's sentence.33
On September 15, 2020, Defendant timely filed his pro se PCRA petition. William A.
Love, Esq., was appointed as counsel and filed an Amended PCRA Petition on December 14,
2020, alleging that (1) trial counsel ineffectively argued a Rule 600 motion prior to trial, and (2)
trial counsel failed to object to Brady violations during trial. On February 15, 2021, the
Commonwealth responded with a motion to dismiss the Amended Petition, arguing that
Defendant's claims were meritless.
On April 11, 2022, this Court ordered the final dismissal of Defendant's Amended PCRA
Petition. This appeal follows.
EVIDENCE AT TRIAL
On the morning of June 19, 2014, Defendant was in the home of Michael Nesmith with
Henry Crosby and Laticj McKnight. N.T 2/7/17, at 45-46. The four shared a "blunt" of K2,
which is synthetic marijuana. Id. at 47. Shortly after, Ms. McKnight left the room to go upstairs
while Mr. Crosby and Mr. Nesmith continued to play a video game. Id. at 52-53. After asking
Mr. Nesmith for a cigarette, Defendant stood up, went to the door, then turned and fired a gun
multiple times at the other two. Id. at 53-34. Mr. Crosby was struck in the abdomen, where the
2
18 Pa. C.S.A. §§ 6105(a); 6106(a); 6108; 907(a) respectively.
3
3
Docket Number: CP-5
CP-51-CR-0007797-2014
l-CR-0007797-2014
2
bullet fractured his ribs, lacerated his liver, and injured his diaphragm. Id. at 187. Mr. Nesmith
was struck in the thigh, but was able to flee upstairs where he told Ms. McKnight what had
happened and called 9-1-1. Id.
After shooting the two victims, Defendant fled the house and jumped on the back of a
passing fire truck. Id. at 100-01, 196. The firemen confronted Defendant and called for police
assistance, but Defendant began walking down the street before the police arrived. Id. at 102-03.
The firemen flagged down some police officers, and while explaining to them what had
occurred, a fireman saw a gun lying on the street 10 to 15 feet behind where they had stopped the
fiance~, and Defendant later admitted
truck. Id. at 103. The gun was registered to Defendant's fiancee,
to carrying it without a license and using it to shoot Mr. Crosby and Mr. Nesmith. Id. at 172-73,
185-86.
The police found Defendant shortly after and took him into custody. Id. at 129. A few
hours after being taken into custody, Defendant told the detective that he had shot the two
victims after smoking K.2. Id. at 166, 171-73.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
Court issued an Order pursuant to Rule 1925(b) of the Pennsylvania
On May 3, 2022, the Comi
Errors
Rules of Appellate Procedure, directing Defendant to file and serve a Statement of Eirnrs
Complained of on Appeal within twenty-one (21) days of the Court's Order. Defendant filed
such a Statement on May 14, 2022, which raised the following issues verbatim:
court err, abuse its discretion, and/or make a mistake of law when it denied,
1. Did the trial comi
as a matter oflaw, Mr. Andrew's PCRA claim that trial counsel was ineffective because
he failed to properly argue a Rule 600 Motion?
3
court err in its Rule 907 Dismissal Notice when it articulated that Mr.
2. Did the trial comi
Andrew's had the burden of proving the Commonwealth's lack of due diligence
regarding Rule 600?
3. Did the trial court err, abuse its discretion, and/or make a mistake of law when it denies,
as a matter oflaw, Mr. Andrew's PCRA claim that counsel was ineffective for not
objecting to Brady violations by the Commonwealth, including, the Commonwealth's
representation that the gun was not tested for fingerprints, ballistics evidence and the
Commonwealth's statement that nothing was ever done with the crime scene?
DISCUSSION
When reviewing the denial of a PCRA petition, the Superior Comi
Court "determine[ s] whether
"determine[s]
the PCRA court's findings of fact are suppo1ied
supported by the record, and whether its conclusions of
law are free from legal error." Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020). The
legal standard of review is de novo but the "scope of review is limited to the findings of the
of record[.] Id. In order to be entitled to an evidentiaiy
PCRA court and the evidence ofrecord[.]" evidentiary hearing
on an ineffectiveness of counsel claim, a defendant must "set forth an offer to prove at an
appropriate hearing, sufficient facts upon which a reviewing court can conclude that ... counsel
may have, in fact, been ineffective." Commonwealth v. Privolos, 715 A.2d 420, 422 (Pa. 1998)
(internal citations omitted). The burden is on the defendant to prove the following to succeed on
a claim of ineffective assistance of counsel: (1) the underlying claim is of arguable merit; (2)
counsel's action or inaction lacked an objective reasonable basis; and, (3) actual prejudice
resulted from counsel's act or failure to act. See Commonwealth v. Tedford, 960 A.2d 1, 30 (Pa.
2008); see also Commonwealth v. Bond, 819 A.2d 33, 42 (Pa. 2002) ("Prejudice in the context
4
of ineffective assistance of counsel means demonstrating that there is a reasonable probability
that, but for counsel's error, the outcome of the proceeding would have been different.");
Commonwealth v. Copenhefer, 553 Pa. 285, 300 (1998) (citations omitted).
I. This Court did not err in holding that trial counsel was effective in arguing a Rule 600
Motion.
Defendant complains that prior counsel was ineffective in arguing a Rule 600 Motion
because prior counsel "failed to provide supporting facts and case law in suppmi
support of the Rule 600
hearing that could have changed the outcome of the proceedings." Amended Petition, at 2.
Specifically, Defendant claims that counsel should have introduced a pro se discovery request at
the hearing and cited to case law about the Commonwealth's affirmative duty to provide
discovery within a reasonable amount of time. Amended Petition, at 3. However, Defendant's
claims are meritless, and this Court did not err in denying them.
Rule 600 requires that "trial in a comi
court case in which a written complaint is filed against
the defendant shall commence within 365 days fi:om
from the date on which the complaint is filed."
Pa.R.Crim.P. 600(A)(2)(a). A Rule 600 Motion is available as a remedy for a defendant "when a
defendant has not been brought to trial within the time periods set fmih
forth in paragraph (A)."
Pa.R.Crim.P. 600(D)(l).
600(D)(1). Comis
Courts review a Rule 600 Motion "in light most favorable to the
prevailing party," but limit the scope of review "to the trial co mi's findings, and the evidence
presented at the Rule 600 hearing." Commonwealth v. Fontanez, No. 2428 EDA 2018, 2021
LEXIS 1176, at *7 (Pa. Super. April 30, 2021 ). Fmihermore,
Furthermore, Rule 600 requires reviewing comis
courts
to consider whether the delay was caused by the Commonwealth's failure to exercise due
diligence, which the Commonwealth has the burden of proving by a preponderance of the
5
evidence. See Commonwealth v. Fraschetti, No. 1950 MDA 2018, 2020 Pa. LEXIS 456, at *29
29
(Pa. Super. Feb 7, 2020); see also Commonwealth v. Alceus, No. 623 MDA 2020, 2021 LEXIS
8 (Pa. Super. Jan, 5, 2021) (citations omitted) ("So long as there has been no misconduct
45, at *8
on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an
accused, Rule 600 must be construed in a manner consistent with society's right to punish and
deter crime.").
Here, Defendant claims that previous counsel failed to introduce case law suppmiing
supporting the
argument that the Commonwealth had an "affirmative duty to provide discovery within a
reasonable amount of time." Amended Petition, at 3. To support that argument, Defendant
referenced a dialogue between the court and trial counsel where counsel argued that the
Commonwealth in this case should have made a more timely effmi
effort obtaining evidence from the
DNA lab. Amended Petition, at 4. However, Defendant failed to elaborate on that argument
regarding the DNA results and failed to provide any fmiher
further explanation on the Commonwealth's
involvement on the matter. Fmihe1more,
Furthermore, Defendant's argument lacked any evidence that would
suggest the Commonwealth had been negligent or that the "prosecutor's inaction" was
"inexcusable," which is required to warrant a Rule 600 Motion. See Commonwealth v. Preston,
904 A.2d 1, 12 (Pa. Super. 2006) (internal citations omitted) (observing that "[d]ue diligence
must be judged on what was done by the authorities, not on what was 'not done'").
It is true that case law mentions a duty upon the Commonwealth to take "reasonable steps
... to obtain the mandatory discovery material and transmit it to [defendant] in sufficient time
for the case to be tried." See Edwards, 595 A.2d at 54. However, Defendant's claim is
irrelevant because even if prior counsel had supported his argument with case law, there is no
evidence to suggest the Commonwealth failed to show due diligence in bringing the case to trial.
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Amended Petition, at 4. Defendant does not provide any evidence showing that the
Commonwealth failed to take "reasonable steps" during the discovery period or that the
Commonwealth intentionally or negligently withheld requested discover material. See Edwards,
595 A.2d at 54.
Also, Defendant claims that prior counsel was ineffective in arguing a Rule 600 motion
because counsel was "unable to identify when the defendant requested discovery." Amended
Petition, at 3. To support that argument, Defendant refers to docket entries from 2014 indicating
the lack of evidence during the early stages of discovery and an informal written request for
discovery by the Defendant. Id.; Amended Petition, Exhibit "A". Defendant argues that prior
counsel was ineffective because he did not introduce those entries into evidence during trial.
Amended Petition, at 3. However, the docket also shows that this Comi
Court ordered a motion
granting Defendant's request for continuance on May 15, 2015. See Commonwealth's Motion to
Dismiss Ex. B, 12. Defendant did not mention the request for continuance in his Amended
Petition and only supp01ied
supported his argument by referencing the July 28, 2014 docket entry, which
indicated "partial discovery, missing ballistics, missing C&L" but did not provide any further
evidence of what specific evidence was "missing." See Amended Petition, at 3;
Commonwealth's Motion to Dismiss at 6-7. The only Exhibit included in Defendant's Amended
Petition is an "Informal Request of Discovery" from September 23, 2014, which came only two
months after the July 28, 2014 "paiiial
"partial discovery entry" and was the first formal notice of any
lack of discovery. However, Defendant provides no evidence to show that the Commonwealth
was at fault for the lack of discovery during that two-month investigation period. See
Commonwealth v. Preston, 904 A.2d 1, 12 (Pa. Super. 2006)
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This Court did not err in holding that trial counsel was effective in arguing a Rule 600
Motion because the record shows that Defendant had requested a continuance, and Defendant
fails to offer any evidence suggesting that the delay was caused by the Commonwealth's failure
to exercise due diligence. For these reasons, Defendant's Petition is meritless.
II. This Court did err in its phrasing of its Rule 907 Dismissal Notice, but it does not change
the outcome of this case.
Defendant is correct in suggesting that the trial court erred in articulating that "Mr.
Andrews had the burden of proving the Commonwealth's lack of due diligence regarding Rule
600" because the burden of proving due diligence rests on the Commonwealth, not the
defendant. Concise Statement of Errors Complained of on Appeal, at 1;
l; see also Commonwealth
v. Burno, 63 8 Pa. 264, 314. Defendant's argument is in reference to this Comi'
Court'ss wording on
page 2 of its "Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907'' where the Court
stated: "While the Defendant contests the accuracy of the docket, he has offered no proof ... (3)
that the Commonwealth failed to exercise due diligence in providing mandatory discovery."
Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907, at 2. It is true that this
statement incorrectly implies that the Defendant bears the burden of proving due diligence.
However, although this Comt
Court erred in its phrasing, it does not change the outcome of this case
because the Commonwealth met its burden of proving due diligence. The Commonwealth
provided record evidence showing that the delay was caused by the "defense['s] request for
continuance and the trial court's crowded docket." Commonwealth's Motion to Dismiss, at 6;
Ex. B, 12. In fact, "[a]t the Rule 600 hearing, this Court found that defendant was responsible
for the 285 days of delay." Id. at Ex. B, 12. Therefore, although this Court erred in its phrasing,
8
Defendant's claim is still without merit because the Commonwealth met its burden of proving
due diligence.
III. This Court did not err in holding that trial counsel was effective regarding an alleged
Brady violation.
Defendant complains that trial counsel was ineffective for failing to object to an alleged
Brady violation by the Commonwealth. Amended Petition, at 5-8. Specifically, Defendant
argues that trial counsel failed to object to contradicting testimony regarding fingerprints and
ballistics evidence and that a Brady violation occurred because the prosecution withheld material
evidence that would have changed the result of the case, but counsel failed to object to it at trial.
Id.; N.T. February 6, 2017, at 21. However, Defendant's claims are meritless, and this Court did
not err in denying them.
To succeed on a Brady violation claim, a defendant must meet his burden of proving that
there was (1) evidence, whether exculpatory or impeaching, favorable to the defendant, (2)
suppressed by the prosecution, and (3) to the prejudice of the defendant. See Tedford, 960 A.2d,
at 30 (citations omitted); see also Brady v. Maryland, 373 U.S. 83, 87 (1963); Commonwealth v.
Burkett, 5 A.3d 1260, 1268 (Pa. Super. 2010).
First, Defendant's claim of ineffective counsel fails because trial counsel's failure to
object to alleged contradicting testimony does not amount to "misconduct" of "arguable merit."
See Tedford, 960 A.2d, at 28-31. Defendant argues that the testimony is contradicting because
in February of 2017, Assistant District Attorney Clemons said "[t]here was nothing ever done
with the crime scene" after being asked whether there was any outstanding discovery. Amended
Petition, at 5; N.T. February 6, 2017, at 21. The following day, Police Officer Tiffany
9
Richardsons stated that a fingerprint examination of the gun was conducted which came back
negative and that ballistics evidence was also found at the crime scene. Amended Petition, at 5;
N.T. February 7 2017, at 159. Therefore, Defendant argues that the testimony of the District
Attorney and Officer Richardsons is contradicting because while the DA said there was no
evidence from the crime scene, Officer Richardsons described details of evidence obtained from
the crime scene. Amended Petition, at 5-8. However, Defendant is unable to prove that the
statements are actually contradictory. Officer Richardsons testified that the fingerprint test came
back negative, so there were no fingerprints to analyze. Commonwealth's Motion to Dismiss, at
10. Furthermore, Defendant was not prejudiced because he admitted to possessing the firearm so
fingerprint evidence regarding the gun is irrelevant. Therefore, even if that testimony is found to
be contradictory, trial counsel's failure to object to it does not amount to any misconduct that
would change the outcome of the case.
Second, Defendant argues that the contradictory testimony contained new information
regarding fingerprint and ballistic evidence which, had it been introduced earlier, would have
changed the outcome of the case. Amended Petition, at 8. However, Defendant failed to offer
any evidence showing that the testimony regarding fingerprint analysis and ballistic evidence
was (1) "exculpatory," "impeaching," or "material" (2) "suppressed" by the Commonwealth, or
(3) "prejudicial." Additionally, Defendant admitted to possessing the firearm and using it to
shoot the victim, so any additional fingerprint or ballistic evidence is irrelevant. Thus, the "truth-
determining process" had not been violated. See Copenhefer, 553 Pa., at 300. Therefore,
although the fingerprint analysis came back negative, it held no value. Defendant's argument is
meritless.
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. ' .
CONCLUSION
For the foregoing reasons, the issues in this appeal are without merit. We respectfully
request the Superior Court to affirm this Court's decision.
decision.
BY THE COURT:
Aug�22
.7
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