Com. v. Massaquoi, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MANNA MASSAQUOI :
:
Appellant : No. 1598 EDA 2022
Appeal from the PCRA Order Entered June 2, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003006-2010
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 7, 2023
Appellant, Manna Massaquoi, appeals from the June 2, 2022 order
entered in the Philadelphia County Court of Common Pleas dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46, as meritless. After careful review, we affirm.
We summarize the facts and procedural history as follows. On February
7, 2010, Appellant viciously attacked his then-girlfriend, Maleeka Clark,
causing her serious injuries, which required an eight-day hospitalization. The
Commonwealth charged Appellant with numerous offenses arising from the
attack.
During the next two and a half years, Appellant received multiple
psychological evaluations and extensive mental health treatment before the
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* Retired Senior Judge assigned to the Superior Court.
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trial court ultimately deemed him competent to stand trial. Although Appellant
was represented by counsel throughout his pretrial proceedings, he pro se
filed four motions to dismiss alleging that the Commonwealth was violating
his right to a speedy trial pursuant to Pa.R.Crim.P. 600. The trial court did
not rule on any of these pro se motions.
Appellant’s jury trial commenced on July 9, 2012. Relevant to the
instant appeal, Ms. Clark testified in detail about the attack and the numerous
serious injuries she suffered. She also identified Appellant as the perpetrator.
She further testified that she suffers from mental health problems, including
schizophrenia, bipolar and multiple personality disorders, and depression.
Philadelphia Police Detective Darryl Pearson also testified. He testified
that he was the investigator assigned to Ms. Clark’s case and took her
statement at the hospital. He also testified that he photographed the crime
scene and prepared a diagram of the crime scene that the Commonwealth
introduced as evidence.
Appellant, who denied being Ms. Clark’s attacker, testified on his own
behalf. He testified that, when he arrived at the scene, an unknown man
answered the door and punched him in the face. Appellant testified that he
returned the punch and the two men proceeded to exchange blows, after
which the unknown man ran off. He claimed that after his fight with this man,
he noticed Ms. Clark sitting in the snow naked, injured, and bleeding.
Appellant denied entering the home where Ms. Clark was assaulted.
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On July 16, 2012, the jury convicted Appellant of Aggravated Assault,
Possession of an Instrument of Crime, Terroristic Threats, Simple Assault, and
Recklessly Endangering Another Person. On April 9, 2013, the trial court
sentenced him to 75 to 150 months of incarceration, followed by 5 years of
probation. Appellant filed a timely post-sentence motion, which was denied
by operation of law on August 12, 2013. Appellant did not file a direct appeal
from his judgment of sentence.
On September 28, 2018, the PCRA court reinstated Appellant’s direct
appeal rights. On November 13, 2019, this Court affirmed Appellant’s
judgment of sentence.1 Commonwealth v. Massaquoi, 2019 WL 5995452(Pa. Super. Nov. 13, 2019). On April 29, 2020, the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal. Commonwealth
v. Massaquoi, 230 A.3d 1021 (Pa. 2020).
On May 22, 2020, Appellant pro se filed a PCRA petition raising, inter
alia, a claim of prosecutorial misconduct and numerous allegations that his
trial counsel, Brendan McGuigan, Esquire, had rendered ineffective assistance.
The PCRA court appointed counsel who filed an amended petition
asserting that Attorney McGuigan and sentencing counsel, Lawrence J. Bozelli,
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1 On direct appeal, Appellant challenged the weight of the evidence generally
and the sufficiency of the evidence in support of his Aggravated Assault
conviction. Relevantly, this Court found that Appellant had waived his weight
of the evidence claim by failing to raise in in his post-sentence motion.
Nevertheless, the Court concluded that, even if it were not waived, Appellant’s
weight claim lacked merit. Commonwealth v. Massaquoi, 3183 EDA 2018,
2019 WL 5995452, at *4-5 (Pa. Super. Nov. 13, 2019).
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Esquire, had provided ineffective assistance of counsel and an after-
discovered evidence claim asserting that a notice he received from the
Philadelphia District Attorney’s Office pertaining to misconduct allegations
against Police Detective Darryl Pearson constituted exculpatory evidence that,
if known at the time of trial, would likely have resulted in a different outcome.2
On May 11, 2022, the PCRA court issued a notice of intent to dismiss as
meritless Appellant’s Amended Petition pursuant to Pa.R.Crim.P. 907.
Appellant did not file a response to the Rule 907 Notice. On June 2, 2022, the
PCRA court dismissed Appellant’s petition.
This timely appeal followed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
I. Whether the PCRA court erred in denying Appellant’s PCRA
petition without an evidentiary hearing on the issues raised
in the amended PCRA petition regarding trial counsel’s
ineffectiveness[?]
a. Trial counsel provided ineffective assistance of
counsel for conducting inadequate pre-trial
investigation by failing to [e]nsure that available
exculpatory evidence was introduced.
b. Trial counsel provided ineffective assistance of
counsel for failing to object to Appellant’s
incompetence at the time of trial.
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2 On June 24, 2021, the Commonwealth filed a Motion to Dismiss Appellant’s
Amended PCRA petition. On September 6, 2021, Appellant filed a Supplement
to his Amended PCRA petition. On December 9, 2021, the Commonwealth
filed a Supplemental Motion to Dismiss.
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c. Trial counsel provided ineffective assistance of
counsel for failing to object to [J]udge Kane and
[J]udge Beloff’s failure to rule on Appellant’s multiple
pro se motion[s] to dismiss pursuant to [R]ule 600.
d. Sentencing counsel provided ineffective assistance for
failing to raise an argument that the weight of the
evidence was contrary to the verdict issued in a post-
sentence motion.
II Whether Appellant is entitled to a new trial based on the
newly discovered evidence that would likely change the
outcome of the case[?]
Appellant’s Brief at 7.
A.
Appellant challenges the PCRA court’s dismissal of his petition without a
hearing as meritless. “In reviewing the denial of PCRA relief, we examine
whether the PCRA court’s determination is supported by the record and free
of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)
(quotation marks and citation omitted). “The scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014).
A PCRA petitioner is not automatically entitled to an evidentiary hearing.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). “[I]f the
PCRA court can determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary.” Id. We review the PCRA court’s
decision dismissing a petition without a hearing for an abuse of discretion.
Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013).
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Appellant has raised four claims arising from trial and sentencing
counsels’ alleged ineffective assistance. In analyzing claims of ineffective
assistance of counsel, we presume that trial counsel was effective unless the
PCRA petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d
1167, 1177 (Pa. 1999). To succeed on a claim of ineffective assistance of
counsel, Appellant must demonstrate that (1) the underlying claim is of
arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3)
the ineffectiveness of counsel caused the appellant prejudice.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). Appellant bears
the burden of proving each of these elements, and his “failure to satisfy any
prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
B.
In his first issue, Appellant asserts that Attorney McGuigan was
ineffective for not conducting a thorough pre-trial investigation, which
Appellant alleges would have led to Attorney McGuigan’s investigation of
exculpatory letters sent to Appellant by the victim and a man who is either a
potential exculpatory witness or the actual perpetrator or both. Appellant’s
Brief at 15-18.
The PCRA court concluded that these claims lacked merit because
Appellant: (1) did not submit the allegedly exculpatory letters to the court in
violation of Pennsylvania law; and (2) failed to provide the identity and
whereabouts of the unnamed man who Appellant alleges was either an
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exculpatory witness or the actual perpetrator of the assault. PCRA Ct. Op.,
10/4/22, at 3 (citing 42 Pa.C.S. § 9545(d)(1)(i) (requiring a petitioner to
submit all documents material to a witnesses’ testimony, with certification, to
properly verify a claim); Commonwealth v. Poindexter, 646 A.2d 1211,
1216 (Pa. Super. 1994) (explaining that a successful ineffectiveness of
counsel claim for failure to investigate witnesses requires identifying the name
of a potential witness)).
The record supports the PCRA court’s determination. Here, Appellant
claims that Ms. Clark sent him letters expressing remorse, but does not
provide any support for this assertion and acknowledges in his Brief to this
Court that the letters were never introduced into evidence. Moreover,
Appellant has not articulated how the letters, if they exist, would have affected
the outcome of the case. The PCRA court properly concluded that Attorney
McGuigan cannot be deemed ineffective for failing to conduct a pretrial
investigation where Appellant has not proven that the allegedly exculpatory
letters even exist, let alone that they would have resulted in a different
outcome at trial.
Similarly, because Appellant has not identified the man who he believes
could be an exculpatory witness or the actual perpetrator of the assault on
Ms. Clark, his allegation that Attorney McGuigan was ineffective for not
investigating this man as a witness fails. Appellant is, thus, not entitled to
relief on his claim that Attorney McGuigan was ineffective for failing to conduct
an adequate pre-trial investigation.
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C.
Next, Appellant claims that Attorney McGuigan was ineffective for not
objecting to the trial court’s ruling that Appellant was competent to stand trial.
Appellant’s Brief at 18-20.
Our rules of appellate procedure require that an appellant present an
argument addressing the lower court’s decision underlying his appeal and
support his argument with “discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). When an appellant fails to do so, this
Court “will not become the counsel for an appellant, and will not, therefore,
consider [the] issue[.]” Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.
Super. 2006) (quotation marks and citation omitted). See also Pa.R.A.P.
2101 (“if the defects are in the brief [] of the appellant and are substantial,
the appeal or other matter may be quashed or dismissed.”).
Appellant has failed to support his argument with citation to the record
and to develop it with citation to and discussion of relevant case law.
Appellant’s failure to develop any legal argument to support his claim that
Attorney McGuigan was ineffective in failing to object to the court’s
competency determination fatally hampers our ability to consider this issue.
As a result, we conclude that Appellant has waived this claim.
D.
Appellant next argues that Attorney McGuigan was ineffective for failing
to object to the trial court’s neglect in ruling on any of his four pro se motions
to dismiss. Appellant’s Brief at 20-22.
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Pursuant to 210 Pa. Code § 65.24, “[w]here a litigant is represented by
an attorney before the Court and the litigant submits for filing a petition,
motion, brief or other type of pleading in the matter, it shall not be accepted
for filing, but noted on the docket and forwarded to counsel of record.” See
also Pa.R.Crim.P. 576(a)(4) (same). “[T]here is no constitutional right to
hybrid representation ... at trial[.]” Commonwealth v. Ellis, 626 A.2d 1137,
1139 (Pa. 1993). A pro se motion filed by a represented defendant is “a
nullity, having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349,
355 (Pa. Super. 2007).
The record reflects that Appellant filed pro se motions to dismiss on
September 9, 2011, November 17, 2011, February 17, 2012, and May 30,
2012. The record also reflects that each time Appellant filed a pro se motion
to dismiss he was represented by counsel. Because Appellant was represented
by counsel when he filed the motions to dismiss, the motions were legal
nullities and Attorney McGuigan would have had no reason to object to the
trial court not ruling on them. Accordingly, we agree with the PCRA court that
that this claim of ineffective assistance of counsel lacks merit.
D.
In his final ineffective assistance of counsel claim, Appellant asserts that
Attorney Bozelli was ineffective for failing to raise a weight of the evidence
claim in his post-sentence motion. Appellant’s Brief at 22-25. Specifically,
Appellant avers that Ms. Clark’s testimony was unreliable and incoherent. Id.
at 23. He emphasizes that because Ms. Clark has received several mental
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health diagnoses for which she did not regularly take her medication, drank
past the “point of casual intoxication,” admitted she forgets things and that
God told her to jump out of the window of the apartment, her testimony was
so “untrustworthy as to make it unworthy of supporting the weight of
Appellant’s convictions.” Id. Appellant concludes that, because his conviction
“went against the weight of the evidence,” Attorney Bozelli was ineffective for
failing to file a post-sentence motion asserting this claim. Id. at 24-25.
In order to obtain relief on a claim that counsel was ineffective for failing
to file a post-sentence motion challenging the weight of the evidence, the
petitioner “must demonstrate that the verdict was against the weight of the
evidence . . . .” Commonwealth v. Smith, 181 A.3d 1168, 1186 (Pa. Super.
2018). When there is no merit to the underlying weight-of-the-evidence
claim, a PCRA petitioner is not entitled to relief on a claim that trial counsel
was ineffective for failing to file a post-sentence motion to preserve the claim
for appeal. Id. at 1187.
“The weight of the evidence is exclusively for the finder of fact who is
free to believe all, part, or none of the evidence and to determine the
credibility of witnesses.” Commonwealth v. Champney, 832 A.2d 403, 408
(Pa. 2003) (citation omitted). “This court cannot substitute its judgment for
that of the jury on issues of credibility.” Commonwealth v. DeJesus, 860
A.2d 102, 107 (Pa. 2004).
Appellant essentially challenges the credibility of Ms. Clark and asks that
we reweigh the testimony and evidence at trial. As noted above, it is within
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the province of the jury to weigh Ms. Clark’s testimony. We cannot and will
not reweigh the evidence and substitute our judgment for that of the jury.
Accordingly, Appellant’s weight claim fails.
Attorney Bozelli cannot be deemed ineffective for failing to raise a
meritless issue. See Commonwealth v. Washington, 927 A.2d 586, 608
(Pa. 2007) (stating that “[c]ounsel will not be deemed ineffective for failing to
raise a meritless claim”)). Therefore, no relief is due.
E.
In his final issue, Appellant claims that the PCRA court erred in finding
his after-discovered evidence claim meritless. Appellant’s Brief at 25-27. In
particular, Appellant notes that he received a November 2, 2020 “packet” from
the Commonwealth notifying him that Detective Pearson had been dismissed
from the police force in 2004 or 2005 for “numerous infractions and offenses
. . . including harassment, misuse of city computers, forgery, threats, and
intimidation,” but subsequently reinstated pursuant to an arbitration award.
Id. at 25-26. Appellant contends that, because “the defense in Appellant’s
trial was credibility[, t]he disclosure packet casts serious doubt on the
credibility of [D]etective Pearson[.]” Id. at 26. He explains that, if this
information had been known to him at the time of trial he would not have used
it merely to impeach Detective Pearson but rather that his counsel could have
used it to “attempt to show misconduct in Appellant’s arrest[,]” likely resulting
in a different outcome. Id.
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To receive a new trial based on after-discovered evidence, a petitioner
must satisfy a four-part test requiring the petitioner to demonstrate the [after-
discovered] evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). “The test is
conjunctive; the [petitioner] must show by a preponderance of the evidence
that each of these factors has been met in order for a new trial to be
warranted.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super.
2010). In addition, the after-discovered evidence must be producible and
admissible. Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018).
The PCRA court explained that it found Appellant’s claim meritless
because “Detective Pearson’s misconduct was limited to his involvement in a
domestic dispute” and there was no record evidence that Detective Pearson
acted improperly in this case.3 PCRA Ct. Op. at 6-7. The court further opined
that “[a]bsent evidence that the [d]etective’s conduct may have impacted the
instant case, Detective Pearson’s unrelated past misconduct alone does not
provide enough evidence to order a new trial in this matter.” Id. at 7 (citing
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3 The Commonwealth explained in its Brief to this Court that Detective Pearson
was arrested for a domestic incident in 2004. The charges related to that
incident were dismissed. Detective Pearson was also charged with making a
false statement in a police department investigation and was acquitted in
2007. See Commonwealth’s Brief at 14.
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Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (finding
that the later filing of criminal charges in an unrelated matter against a
detective who had testified in the appellant’s gun possession trial did not meet
the after-discovered evidence test because the appellant failed to show any
nexus between his case and the detective’s alleged misconduct in an incident
that occurred more than two years after the appellant’s conviction). The
court, thus, concluded that Appellant failed to demonstrate that the after-
discovered evidence would likely result in a different verdict if the court
granted Appellant a new trial.
The record supports the PCRA court’s factual findings and the PCRA
court’s legal determination is free of error. Our review confirms that
Appellant’s claim consists of nothing more than bald speculation that had his
counsel known at the time of trial of Detective Pearson’s prior misconduct
counsel could have attempted to show that Detective Pearson acted
improperly in this case. Appellant does not articulate any nexus between
Detective Pearson’s alleged misconduct in the unrelated prior cases and
Detective Pearson’s conduct in his case, and we discern none from our review
of the record. Without such a nexus, Appellant cannot establish a reasonable
likelihood that the result of his trial would have been different, especially when
considering the substantial evidence of Appellant’s guilt, including Ms. Clark’s
detailed testimony about Appellant’s criminal actions. This claim, thus, fails.
F.
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In light of the foregoing, we conclude that the trial court properly
determined from the record that no genuine issues of material fact existed as
to any of Appellant’s claims. Thus, the trial court did not abuse its discretion
in declining to hold an evidentiary hearing prior to dismissing Appellant’s PCRA
Petition. Accordingly, we affirm the order of the PCRA court dismissing
Appellant’s PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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