Com. v. Daniely, A. ( 2023 )

J-A21014-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN R. DANIELY :
:
Appellant : No. 2699 EDA 2022
Appeal from the PCRA Order Entered October 11, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001875-2008
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2023
Appellant Allen R. Daniely appeals from the order denying his timely first
Post Conviction Relief Act1 (PCRA) petition. Appellant argues that the PCRA
court erred in rejecting his ineffectiveness claims against both trial counsel
and direct appeal counsel. We affirm.
We adopt the PCRA court’s summary of the facts and procedural history
underlying this matter. See PCRA Ct. Op., 1/9/23, at 1-5. Briefly, Appellant
was convicted of first-degree murder and related offenses following the 2007
shooting death of Darryl Jones. After the trial court imposed a mandatory
sentence of life imprisonment in 2009, this Court affirmed Appellant’s
judgment of sentence on direct appeal. See Commonwealth v. Daniely,
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1 42 Pa.C.S. §§ 9541-9546.
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1200 EDA 2012, 2013 WL 11259170 (Pa. Super. filed July 16, 2013)
(unpublished mem.).
Appellant filed a timely pro se PCRA petition in 2014. Appellant
subsequently retained PCRA counsel,2 who filed an amended petition on
Appellant’s behalf. Therein, Appellant argued that (1) trial counsel was
ineffective for advising Appellant that he would receive a twenty-to-forty-year
prison sentence if he waived his right to a jury trial; and (2) both trial counsel
and direct appeal counsel were ineffective for failing to challenge the
sufficiency of the identification evidence. See Am. PCRA Pet., 3/23/22, at 9-
26.
On October 11, 2022, the PCRA court conducted an evidentiary hearing
to address Appellant’s jury trial waiver claim. At the hearing, the PCRA court
heard testimony from Appellant, Appellant’s parents, and trial counsel.
Ultimately, the PCRA court found trial counsel credible and concluded that trial
counsel did not promise Appellant any specific sentence in exchange for
waiving his right to a jury trial. See N.T. PCRA Hr’g, 10/11/22, at 104-06.
That same day, the PCRA court issued an order dismissing Appellant’s petition.
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2 We note that Appellant has been represented by numerous attorneys since
he filed his PCRA petition in 2014. See PCRA Ct. Op. at 1-3. In June of 2021,
the PCRA court conducted a hearing pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998) and granted Appellant’s petition to proceed pro se.
However, Appellant subsequently retained Teri Himebaugh, Esq., who was
granted leave to file an amended petition on Appellant’s behalf.
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Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant raises the following issues for review:
1. Did the PCRA court err when, after a hearing, it denied
Appellant’s claim that he was denied his rights under Article 1
§ 9 [of the Pennsylvania Constitution] and the Sixth and
Fourteenth Amendments to the Constitution of the United
States of America when trial counsel ineffectively represented
to the Appellant that he should waive his constitutional right to
a trial by jury and that if he did so, he would receive no more
than a 20 to 40 year sentence?
2. Did the PCRA court err when it denied Appellant’s claim that he
was denied his rights under Article 1 § 9 [of the Pennsylvania
Constitution] and the Sixth and Fourteenth Amendments to the
Constitution of the United States of America when trial counsel
failed to properly argue insufficiency of the evidence in the
motion for judgment of acquittal on the first-degree murder
charges; counsel on direct appeal ineffectively failed to
challenge the sufficiency of the evidence with regard to the
first-degree murder conviction [without a hearing]?
Appellant’s Brief at 3 (some formatting altered).
Waiver of Jury Trial
In his first issue, Appellant argues that the PCRA court erred in rejecting
his claim that trial counsel was ineffective in connection with Appellant’s jury
trial waiver. Id. at 12. Specifically, Appellant reiterates his assertion that
trial counsel told Appellant that he would receive a twenty-to-forty-year prison
sentence if he waived his right to a jury trial. Id. at 19-20. In support,
Appellant relies on his own testimony at the PCRA hearing and the testimony
from his parents. Id. at 16-22. Further, he argues that trial counsel’s
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“testimony at the PCRA hearing was highly self-serving and incredible” and
that the circumstances surrounding the jury trial waiver clearly indicate that
he waived his right to a jury trial solely based on trial counsel’s advice. Id.
at 24-26, 30. He also claims that “[t]here was no reasonable, rational
evidentiary basis” for trial counsel’s advice to proceed with a waiver trial and
that “[h]ad [he] received objectively reasonable advice from [trial counsel] .
. . he would have elected a jury trial, satisfying the prejudice requirement.”
Id. at 24, 29. Finally, although Appellant acknowledges that he participated
in an on-the-record waiver colloquy, he claims that the colloquy “goes to the
‘voluntariness’ of the waiver and not whether [his decision] was ‘intelligent.’”
Id. at 30.
Our review of the denial of PCRA relief is limited to “whether the record
supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4
(Pa. Super. 2014) (citations omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal
conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)
(citation omitted).
We presume that the petitioner’s counsel was effective.
Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish
a claim of ineffective assistance of counsel, a defendant “must show, by a
preponderance of the evidence, ineffective assistance of counsel which, in the
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circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007)
(citations omitted).
The burden is on the defendant to prove all three of the following
prongs: “(1) the underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Id. (citations
omitted). Moreover, “[a] 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) (citation omitted).
Here, the PCRA court addressed Appellant’s claim as follows:
A claim that trial counsel was ineffective by coercing a defendant
to waive his right to a jury trial ordinarily will be unsuccessful
where it is “contradicted by testimony elicited from [defendant]
during his waiver colloquy.” Commonwealth v. Bishop, 645
A.2d 274, 277 (Pa. Super. 1994). Under this rule, where the
record shows that defendant testified during his waiver colloquy
“that his jury trial waiver was not the product of threats, coercion,
or promises . . . . [a defendant’s] claim is unsupported by the
record, [and] must fail.” Id.However, our Superior Court has recognized a narrow exception
to the general rule outlined above. Where a defendant claims that
he waived his right to a jury trial because of a specific promise
made to him by defense counsel as to what his sentence would
be, then the misrepresentation by counsel may invalidate the
waiver. Commonwealth v. Carey, 340 A.2d 509, 511 (Pa.
Super. 1975). However, because a disappointed defendant may
often claim that he was misled by his counsel, defendant’s claim
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must be corroborated by another source that is accepted as
truthful. “Thus, if defense counsel denies any inducement, and if
no other corroborating evidence is produced, the waiver will be
upheld.” Id.At the evidentiary hearing, the Commonwealth presented
testimony from trial counsel, Michael Coard, Esq. [(trial counsel)].
[Appellant] presented testimony from his parents, Bonita Crabbe
and Alan Crabbe, and [Appellant] also testified on his own behalf.
First, [trial counsel] testified that he had been practicing criminal
defense for 26 years. N.T. PCRA Hr’g, 10/11/22, at 7-8. He stated
that prior to [Appellant’s] trial, he unsuccessfully attempted to
persuade the Commonwealth to agree to allow [Appellant] to
plead to third-degree murder. Id. at 10. After that, [trial counsel]
began preparing in earnest for trial, and he explained to
[Appellant] the advantages and disadvantages of a jury trial
versus a waiver trial. Id. at 11-12, 28. Following that discussion,
[Appellant] decided to go with a waiver trial. Id. at 13. [Trial
counsel] further testified that he never told [Appellant], or
[Appellant’s] parents, that [Appellant] would receive any
guaranteed sentence if [Appellant] proceeded with a waiver trial,
and that he had never made such a promise in his career as a
criminal defense attorney. Id. at 13-14. [Trial counsel] also
stated that he went through the written waiver form with
[Appellant,] and [Appellant] did not have any questions regarding
the form. Id. at 14-15. Moreover, [trial counsel] testified that
during Judge Hughes’ oral colloquy regarding the waiver of
[Appellant’s] rights to a jury trial, there was no indication that the
[Appellant] was confused or wished to proceed with a jury trial.
Id. at 15-16. Lastly, [trial counsel] testified that he did not
pressure [Appellant] to proceed with a bench trial, and if
[Appellant] wanted to have a jury trial, then he would have taken
that course of action. Id. at 16.
Next, [Appellant’s] mother, Bonita Crabbe, testified. N.T. PCRA
Hr’g, 10/11/22, at 31. Ms. Crabbe stated that she spoke with
[trial counsel] in [trial counsel’s] office and they discussed
[Appellant’s] possible guilty plea to third degree murder. Id. at
31-32. She also said that she spoke to [trial counsel] another
time in the courtroom hallway just before the trial. Id. at 32-33.
Ms. Crabbe testified that during that conversation, [trial counsel]
told her that if [Appellant] pled guilty to third[-]degree murder,
he would receive a twenty-to-forty-year sentence. Id. at 33.
When asked if [trial counsel] ever discussed whether [Appellant]
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should go with a judge or a jury trial, Ms. Crabbe testified that
[trial counsel] said it was better for [Appellant] to go with a judge
because “he would get a better plea deal if he goes with the
judge.” Id. at 33-34. Ms. Crabbe testified that she understood
that to mean if [Appellant] went with a judge trial, he would
receive a twenty-to-forty-year sentence, and if he went with a jury
trial, he would get life without parole. Id. at 34. She further
testified that she believed if [Appellant] decided to have a waiver
trial with Judge Hughes, he would not be convicted of anything
higher than third-degree murder. Id. at 34
Next, [Appellant’s] father, Alan Crabbe, testified. N.T. PCRA Hr’g,
10/11/22, at 45. He stated that he spoke with [trial counsel] twice
before [Appellant’s] trial. Id. at 45. Mr. Crabbe testified that his
first conversation with [trial counsel] was in [trial counsel’s] office,
and they discussed whether the [Appellant] should go with a jury
trial or judge trial. Id. at 45. Mr. Crabbe testified that [trial
counsel] said [Appellant] should go with a judge trial, and that
[Appellant] would receive 20 years if he went with a judge as
opposed to a jury. Id. at 45, 54. Mr. Crabbe stated that during
the meeting, they also discussed a possible deal for [Appellant] to
plead to third[-]degree murder and receive a twenty-to-forty-year
sentence. Id. at 46. Mr. Crabbe testified that his second
conversation with [trial counsel] was in the hallway outside the
courtroom, at which time [trial counsel] told Mr. Crabbe that
[Appellant] was not going to be able to plead to third[-]degree
murder. Id. at 46-47. Mr. Crabbe stated that during that
conversation, [trial counsel] also discussed the advantages and
disadvantages of going with a judge versus a jury. Id. at 47. Mr.
Crabbe testified that it was his understanding that it would be
better for [Appellant] to go with a judge trial. Id. at 48. When
asked if [trial counsel] explained why it would be better for
[Appellant] to be tried in front of a judge, Mr. Crabbe stated that
if he went with a judge, [Appellant] would receive a twenty-to-
forty-year sentence. Id. at 49.
[Appellant] testified next. He stated that he and [trial counsel]
had two meetings in the District Attorney’s office prior to his trial.
N.T. PCRA Hr’g, 10/11/22, at 58. [Appellant] stated that the
purpose of those meetings was to discuss a possible plea
agreement. Id. at 59. [Appellant] testified that [trial counsel]
told him the Commonwealth offered him a plea deal of [twenty-
to-forty] years if he identified the shooter. Id. at 59. However,
[Appellant] stated that on the morning of the trial, [trial counsel]
informed [Appellant] that they would be going to trial because the
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Commonwealth was no longer offering the plea deal. Id. at 60.
[Appellant] testified that [trial counsel] told [Appellant] that [trial
counsel] and the prosecutor had a conversation with Judge
Hughes in her chambers. Id. at 60. During the conversation,
[trial counsel] told Judge Hughes that [Appellant] was prepared
to plead to [twenty-to-forty years], but the prosecutor was no
longer offering the plea deal. Id. [Appellant] stated that [trial
counsel] then told Judge Hughes that the reason the plea deal was
not going forward was because the Commonwealth wanted
[Appellant] to “tell on his own brother.” Id. Judge Hughes
allegedly responded by saying, “Is that true? Not even I would do
that, not even I would tell on my own brother.” Id. Judge Hughes
then allegedly continued, “Well, this is a unique case. So if
[Appellant] elects to go with a waiver trial, I’ll sentence him to
[twenty-to-forty].” Id. at 60-61. [Appellant] stated that [trial
counsel] also conveyed this conversation to [Appellant’s] parents,
and they agreed with [trial counsel] that [Appellant] should
proceed with a waiver trial. Id. at 61. [Appellant] testified that
[trial counsel] did not go over the advantages and disadvantages
of a judge or jury trial, and that the only reason [Appellant]
elected to waive his jury trial was because Judge Hughes said she
would give him [twenty-to-forty years]. Id. at 61-62.
In its findings of fact rendered at the conclusion of the hearing,
the court found [trial counsel’s] testimony to be credible and
credited his emphatic testimony that he had never guaranteed
anybody a result of a waiver trial. N.T. PCRA Hr’g, 10/11/22, at
104-105. The court stated that the scenario described by
[Appellant] was contradicted by the trial record, the waiver
colloquy, [trial counsel’s] testimony, and the actions of Judge
Hughes. Id. at 107. Therefore, the court found that [trial
counsel] did not promise [Appellant] that he would get a sentence
of [twenty-to-forty] years if he waived his right to a jury trial. Id.
The court further concluded that [Appellant] failed to meet his
burden that his waiver was not knowing, intelligent, and
voluntary. Id. at 107-08.
The court’s rejection of [Appellant’s] ineffective assistance of
counsel claim premised upon alleged promises made to him about
his sentence is fully supported by record. Accordingly, there is no
basis to disturb it on appeal. See Green, 14 A.3d at 116.
PCRA Ct. Op. at 6-10 (some formatting altered).
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Following our review of the record, we discern no error of law in the
PCRA court’s conclusions, which are supported by the record. See Lawson,
90 A.3d at 4. The record confirms that Appellant participated in an on-the-
record waiver colloquy during which time he confirmed that no one had made
“any promises of any form to get [him] to waive [his] right to a jury trial.”
See N.T. Trial, 7/20/09, at 5-8. Further, the PCRA court credited trial
counsel’s testimony at the PCRA hearing and concluded that trial counsel “did
not promise [Appellant] that he would get a sentence of [twenty-to-forty]
years if he waived his right to a jury trial.” See PCRA Ct. Op. at 10. As noted
previously, the PCRA court’s credibility determinations are binding on this
Court. See Mitchell, 105 A.3d at 1265. Therefore, because Appellant has
failed to demonstrate that trial counsel made a specific promise that
invalidated Appellant’s waiver colloquy, Appellant’s claim fails for lack of
arguable merit. See Bishop, 645 A.2d at 277; Carey, 340 A.2d at 511. For
these reasons, Appellant is not entitled to relief.
Failure to Challenge Identification Evidence
In his remaining claim, Appellant argues that both trial counsel and
direct appeal counsel were ineffective for failing to properly challenge the
sufficiency of the identification evidence supporting his conviction for first-
degree murder. Appellant’s Brief at 31. Specifically, Appellant claims that
although trial counsel moved for a judgment of acquittal, trial counsel
challenged the evidence proving specific intent, rather than the evidence
establishing that Appellant was the shooter. Id. at 42. Appellant baldly
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asserts that trial counsel had no reasonable basis for failing to raise this
argument and that, had trial counsel done so, Appellant would have been
acquitted of the first-degree murder charge. Id. at 42-43. Appellant also
claims that direct appeal counsel had no reasonable basis for failing to raise
this claim on appeal and that direct appeal counsel’s “omission of this claim
on direct appeal had an adverse effect on the outcome of the appellate
proceedings.” Id. at 44-45.
“Where a petitioner alleges multiple layers of ineffectiveness, he is
required to plead and prove, by a preponderance of the evidence, each of the
three prongs of ineffectiveness relevant to each layer of representation.”
Commonwealth v. Parrish, 273 A.3d 989, 1004 n.11 (Pa. 2022) (citation
omitted). Further, it is well settled that
if the petitioner cannot prove the underlying claim of trial counsel
ineffectiveness, then [the] petitioner’s derivative claim of
[subsequent] counsel ineffectiveness of necessity must fail, and it
is not necessary for the court to address the other two prongs of
the Pierce[3] test [i.e., the reasonable basis and prejudice prongs]
as applied to [subsequent] counsel.
Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (citations
omitted and formatting altered).
Here, the PCRA court addressed Appellant’s claim as follows:
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3Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987); see also
Turetsky, 925 A.2d at 880 (same).
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It is true that in [Appellant’s] statement to police, he denied that
he was the shooter. Following Miranda[4] warnings, [Appellant]
gave a statement in which he admitted to participating in the
robbery and murder of Mr. Jones with two other accomplices. N.T.
Trial, 7/22/09, at 153-56. However, [Appellant] told police that
he was merely a getaway driver, and that prior to the robbery, he
gave his gun to one of the other accomplices. Id. at 153-54.
However, the Commonwealth offered compelling evidence that
[Appellant] admitted to being the shooter, and not merely the
getaway driver, in a statement that he made to Commonwealth
witness Ebony Sawyer. Ms. Sawyer, who was one of [Appellant’s]
girlfriends, testified that following the murder of Mr. Jones, she
was with [Appellant] when he began playing with a gun and
proceeded to point the gun at Ms. Sawyer. N.T. [Trial,] 7/20/09,
at 161-62. After Ms. Sawyer said to [Appellant], “you wouldn’t
shoot me[,]” [Appellant] stated, “you crazy, ask my goonies[.]”
Id. at 162. According to Ms. Sawyer, [Appellant] said that
“somebody got their back blew out the frame[,]” in reference to
the Saturday shooting. N.T. Trial, 7/20/09, at 163.
More importantly, the Commonwealth also introduced Ms.
Sawyer’s statement to police. In that statement, Ms. Sawyer
stated that [Appellant] told her the following, while pointing a gun
at her:
He said I should have been there on Saturday. Jerone
walked up to the guy and said something to the guy to make
him stop. [Appellant] was playing with the gun and was
showing me how he shot the guy on Saturday,
demonstrating that he shot the gun three times. [Appellant]
said that “I tore his back out the frame.”
N.T. Trial, 7/22/09, at 97-99. This admission, without more, was
sufficient to establish that [Appellant] was the shooter.
Moreover, there was additional compelling evidence that
corroborated [Appellant’s] admissions. In particular, the
Commonwealth presented evidence that three days after the
murder, the police traced the signal from the stolen cell phone of
the decedent, Mr. Jones, to a residence at the intersection of
Germantown Avenue and Washington Lane. N.T. Trial, 7/22/09,
at 139-40. After the police witnessed [Appellant] exit the
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4 See Miranda v. Arizona, 384 U.S. 436 (1966).
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residence with a cell phone in his hand, they stopped [Appellant]
and patted him down. Id. at 140-42. During the pat-down, police
found a .40 caliber handgun on [Appellant], which was the same
type of gun used to shoot Mr. Jones. Id. at 142. Moreover, a
ballistics analysis demonstrated that the two fired cartridge cases
recovered from the scene of the murder had been fired from the
gun recovered from [Appellant]. Id. at 83-87. The police then
verified that the cell phone [Appellant] was holding was Mr. Jones’
missing cell phone. Id. at 142-43.
Accordingly, there was ample evidence to support the [c]ourt’s
finding that [Appellant] robbed and personally shot and killed Mr.
Jones. As a result, neither trial nor appellate counsel was
ineffective for failing to raise meritless claims based on the
sufficiency of the evidence.
PCRA Ct. Op. at 12-13 (footnote omitted and some formatting altered).
Following our review of the record, we discern no error of law in the
PCRA court’s conclusions, which are supported by the record. See Lawson,
90 A.3d at 4. As noted by the PCRA court, the Commonwealth presented
ample evidence demonstrating that Appellant was the shooter. See PCRA Ct.
Op. at 12-13. Therefore, trial counsel was not ineffective for failing to
challenge the sufficiency of the identification evidence. See Commonwealth
v. Rivera, 816 A.2d 282, 292 (Pa. Super. 2003) (reiterating that “trial counsel
will not be considered ineffective for failing to pursue meritless claims”
(citation omitted and formatting altered)). Likewise, because Appellant has
failed to prove that trial counsel was ineffective, his ineffectiveness claim
against direct appeal counsel also fails. See id; see also Parrish, 273 A.3d
at 1004 n.11; Chmiel, 30 A.3d at 1128. Accordingly, Appellant is not entitled
to relief. For these reasons, we affirm.
Order affirmed. Jurisdiction relinquished.
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Date: 12/19/2023
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