Com. v. Hart, T. ( 2017 )


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  • J-S72044-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                            :        PENNSYLVANIA
    :
    :
    v.                         :
    :
    :
    TYRELL HART                             :
    :   No. 3779 EDA 2016
    Appellant
    Appeal from the PCRA Order November 18, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0000461-2010
    BEFORE:    BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
    MEMORANDUM BY STEVENS, P.J.E.:                  FILED DECEMBER 01, 2017
    Appellant Tyrell Hart appeals pro se from the order entered in the Court
    of Common Pleas of Philadelphia County dismissing, without an evidentiary
    hearing, his first petition filed pursuant to the Post Conviction Relief Act
    (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.
    The PCRA court has aptly set forth, in part, the facts and procedural
    history underlying this appeal as follows:
    [Following his arrest and the appointment of David
    Rudenstein, Esquire,] [o]n March 27, 2012, the day before trial,
    the [trial] court denied [Appellant’s] request for a continuance in
    order to retain new counsel as he was not satisfied with. . .his
    appointed counsel. The new counsel, Charles Peruto, Jr., had not
    entered his appearance and was not prepared to proceed to trial.
    [Appellant] had only met with [Attorney] Peruto once before, at
    [Appellant’s] preliminary hearing on January 12, 2010. On March
    27, 2012, [Attorney] Peruto met with [Appellant] at the [trial]
    court’s request, to communicate the Commonwealth’s plea offer
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S72044-17
    and explain to [Appellant] that he would not be representing
    [Appellant] at trial.
    Later that day,. . .the brother-in-law of [Appellant]
    attempted to retain new counsel, Attorney Shaka Johnson. On
    the day of trial, March 28, 2012, the [trial] court permitted
    [Attorney] Johnson to discuss the Commonwealth’s plea offer with
    [Appellant], but would not permit him to represent [Appellant] at
    trial because he was not prepared for trial. [Appellant rejected the
    plea offer, and a jury trial commenced with Attorney Rudenstein
    representing Appellant.]
    At trial, the Commonwealth proved the following:
    The victim, Selene Raynor (“Selene”) was pregnant with
    [Appellant’s] baby.    On October 13, 2009, Danette Raynor
    (“Danette”), Selene’s mother, overheard a telephone conversation
    between [Appellant] and Selene.        Danette testified that in
    response to Selene telling [Appellant] she was going to keep the
    baby, [Appellant] got angry. The next day, Selene received a
    phone call from [Appellant], after which she borrowed her
    mother’s vehicle and picked up [Appellant] at Twenty-Ninth and
    Montgomery Avenue in Philadelphia. They drove around for a
    while before Selene turned onto North Newkirk Street and parked
    the vehicle.
    While in the parked vehicle, [Appellant] shot Selene in the
    head, killing her and the unborn child. Selene’s body was found
    the next day inside her mother’s vehicle at 1920 North Newkirk
    Street.
    On October 15, 2009, [Appellant] was questioned by police.
    [Appellant] made two statements on October 16, 2009. In the
    first statement, he claimed the gun accidentally fired when he
    heard a loud noise that caused him to jump while he was playing
    with it. In the second statement, given to police approximately
    eight and one half hours later, [Appellant] admitted that he
    intentionally shot Selene because he was angry, scared, and
    frustrated over her being pregnant. He claimed that he aimed for
    Selene’s shoulder. [Appellant] also admitted to police that the
    whole time he was in the car with Selene—about twenty minutes-
    he was thinking about shooting her. Both statements were
    admitted into evidence at trial.
    Based on [Appellant’s] statements, the police were able to
    locate the gun at the home of Shayonna Price (“Price”), the cousin
    of [Appellant’s] best friend. A ballistics expert testified that the
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    gun [Appellant] used to shoot Selene required five pounds of
    pressure to be applied on the trigger in order for the gun to shoot.
    Therefore, according to the expert, the trigger had to be pulled to
    fire.
    The medical evidence was that Selene had been shot in the
    head and that she had died from that wound and that her unborn
    baby had died as the result of Selene’s death.
    PCRA Court Opinion, filed 6/28/17, at 2-3.
    Following the conclusion of testimony, the jury convicted Appellant of
    first-degree murder, third-degree murder of an unborn children, carrying a
    firearm without a license, and possessing an instrument of crime.1 Appellant
    proceeded immediately to sentencing, and the trial court sentenced Appellant
    to an aggregate of life in prison without parole.
    Appellant did not file post-sentence motions; however, he filed a timely,
    counseled direct appeal. On appeal, Appellant presented the issue of whether
    the trial court denied Appellant a fair trial.      Specifically, he alleged his
    constitutional rights were violated when the trial court prevented him from
    being represented by the attorney of his choice by denying his request for a
    continuance in connection therewith. After a careful review, we found no merit
    to Appellant’s claim.
    Further, we noted that, on appeal, Appellant filed a motion to remand
    for an evidentiary hearing on the basis of after-discovered evidence, i.e., a
    newspaper article, which stated that two homicide detectives involved in
    ____________________________________________
    1   18 Pa.C.S.A. §§ 2502(a), 2604(c), 6106, and 907, respectively.
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    Appellant’s case had coerced confessions from other criminal defendants.
    Appellant attached to the motion his affidavit, in which he outlined alleged
    coercive tactics utilized by the detectives in his case.          However, we found
    Appellant’s after-discovered evidence claim to be waived due to Appellant’s
    failure to cite any relevant authority, and we denied his claim without
    prejudice to his right to pursue the claim on collateral review. Accordingly, on
    March    21,    2014,     we    affirmed       Appellant’s   judgment   of   sentence.
    Commonwealth v. Hart, No. 1231 EDA 2012 (Pa.Super. filed 3/21/14)
    (unpublished memorandum). Appellant did not file a petition for allowance of
    appeal with our Supreme Court.
    On July 3, 2014, Appellant filed a timely pro se PCRA petition, and the
    PCRA court appointed counsel to represent him. Thereafter, on July 28, 2016,
    counsel filed a petition to withdraw his representation, as well as a
    Turner/Finley2 “no-merit” letter.              On October 7, 2016, the PCRA court
    provided Appellant with notice of its intent to dismiss Appellant’s petition
    without an evidentiary hearing. On October 14, 2016, Appellant filed a pro se
    response to the notice, and on October 26, 2016, he filed a pro se response
    in opposition to counsel’s Turner/Finley letter.
    By order entered on November 18, 2016, the PCRA court granted
    counsel’s petition to withdraw and dismissed Appellant’s PCRA petition. This
    ____________________________________________
    2 Commonwealth v. Turner, 
    518 Pa. 491
    , 
    544 A.2d 927
    (1988);
    Commonwealth v. Finley, 
    550 A.2d 213
    (Pa.Super. 1988) (en banc).
    -4-
    J-S72044-17
    timely pro se appeal followed. The PCRA court directed Appellant to file a
    Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA court
    filed a responsive Pa.R.A.P. 1925(a) opinion.
    Appellant presents the following issues:
    1. Whether prior counsel were ineffective for failing to raise a
    meritorious Pa.R.Crim.P. 600 (speedy trial rule) motion to
    dismiss that deprived [Appellant] of his substantive Sixth (6 th)
    and   Fourteenth      (14th)   United   States   Constitutional
    Amendments and/or the Pennsylvania Constitutional right
    under Article 1, § 9 depriving a basic human right?
    2. Whether [Appellant] was deprived of his substantive (Sixth)
    (6th) [Amendment] and Article 1, § 9 Pennsylvania
    Constitutional right to effective assistance of counsel on direct
    appeal proceedings for the unreasonable failure of counsel to
    submit relevant holdings on [after]-discovered evidence that
    would have merited a remand on direct appeal for an
    evidentiary hearing on a meritorious involuntary confession
    claim?
    3. Whether Petitioner was denied his substantive Sixth (6th)
    [Amendment] and Article 1, § 9 Pennsylvania rights to effective
    assistance of counsel on direct appeal for the unreasonable
    failure of counsel to cite holdings that were directly-on-point to
    [Appellant’s] denial of his substantive right to retained counsel
    of choice[?]
    4. Whether [Appellant] was denied his substantive Sixth (6th)
    [Amendment] and/or Article 1, § 9 Pennsylvania Constitutional
    rights to effective assistance of [ ] trial counsel to follow-
    through on a requested mistrial due to prejudicial prosecutorial
    misconduct used to deprive [Appellant] of fair trial
    proceedings?
    5. Whether [Appellant] was denied his substantive Sixth (6th)
    [Amendment] and Article 1, § 9 Pennsylvania Constitutional
    rights to effective assistance of counsel on direct appeal for the
    unreasonable failure of counsel to ensure the jury selection
    process was transcribed and/or for failing to even review such
    material transcripts?
    6. Whether [Appellant’s] initial review collateral petition raises
    genuine issues of material fact necessitating an evidentiary
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    hearing per Pa.R.Crim.P. 908(A)(2) to adjudicate [Appellant’s]
    ineffective assistance of counsel claims?
    Appellant’s Brief at 4.
    Initially, we note the following:
    When reviewing the denial of a PCRA petition, we must
    determine whether the PCRA court’s order is supported by the
    record and free of legal error. Generally, we are bound by a PCRA
    court’s credibility determinations. However, with regard to a
    court’s legal conclusions, we apply a de novo standard.
    Commonwealth v. Johnson, 
    635 Pa. 665
    , 
    139 A.3d 1257
    , 1272 (2016)
    (quotation marks and quotations omitted).
    Furthermore,
    In order to be eligible for PCRA relief, the petitioner must
    prove by a preponderance of the evidence that his conviction or
    sentence resulted from one or more of the enumerated
    circumstances found in Section 9543(a)(2), which includes the
    ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
    It is well-established that counsel is presumed effective, and
    to rebut that presumption, the PCRA petitioner must demonstrate
    that counsel’s performance was deficient and that such deficiency
    prejudiced him. To prevail on an ineffectiveness claim, the
    petitioner has the burden to prove that (1) the underlying
    substantive claim has arguable merit; (2) counsel whose
    effectiveness is being challenged did not have a reasonable basis
    for his or her actions or failure to act; and (3) the petitioner
    suffered prejudice as a result of counsel’s deficient performance.
    The failure to satisfy any one of the prongs will cause the entire
    claim to fail.
    Commonwealth v. Benner, 
    147 A.3d 915
    , 919–20 (Pa.Super. 2016)
    (quotation marks, quotations, and citations omitted).
    We need not analyze the prongs of an ineffectiveness claim
    in any particular order. Rather, we may discuss first any prong
    that an appellant cannot satisfy under the prevailing law and the
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    applicable facts and circumstances of the case. Finally, counsel
    cannot be deemed ineffective for failing to raise a meritless claim.
    Johnson, 
    635 Pa. 665
    , 139 A.3d at 1272 (citations omitted).
    Further,   to   the   extent   Appellant   presents   layered    claims   of
    ineffectiveness, we note that:
    [l]ayered claims of ineffectiveness are not wholly distinct from the
    underlying claims because proof of the underlying claim is an
    essential element of the derivative ineffectiveness claim. In
    determining a layered claim of ineffectiveness, the critical inquiry
    is whether the first attorney that the [appellant] asserts was
    ineffective did, in fact, render ineffective assistance of counsel. If
    that attorney was effective, then subsequent counsel cannot be
    deemed ineffective for failing to raise the underlying issue.
    Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1190 (Pa.Super. 2012)
    (quotation marks and quotations omitted).
    In his first issue, Appellant contends trial and direct appeal counsel were
    ineffective in failing to raise a claim that Appellant’s case should have been
    dismissed since he was not brought to trial until twenty-nine months after he
    was arrested in violation of his speedy trial rights under Pa.R.Crim.P. 600.
    The PCRA court found no merit to Appellant’s underlying Rule 600 claim, and
    thus, the court held Appellant’s attorneys could not be ineffective. We agree.
    When considering Rule 600 issues:
    this Court is not permitted to ignore the dual purpose behind Rule
    [600]. Rule [600] serves two equally important functions: (1) the
    protection of the accused’s speedy trial rights, and (2) the
    protection of society. In determining whether an accused’s right
    to a speedy trial has been violated, consideration must be given
    to society’s right to effective prosecution of criminal cases, both
    to restrain those guilty of crime and to deter those contemplating
    it. However, the administrative mandate of Rule [600] was not
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    J-S72044-17
    designed to insulate the criminally accused from good faith
    prosecution delayed through no fault of the Commonwealth.
    Commonwealth v. Thompson, 
    93 A.3d 478
    , 486 (Pa.Super. 2014)
    (quotation omitted).
    Rule 600 provides in pertinent part:3
    Rule 600. Prompt Trial
    ***
    (A)(2) Trial in a court case in which a written complaint is
    filed against the defendant, when the defendant is incarcerated on
    that case, shall commence no later than 180 days from the date
    on which the complaint is filed.
    (3) Trial in a court case in which a written complaint is
    filed against the defendant, when the defendant is at liberty on
    bail, shall commence no later than 365 days from the date on
    which the complaint is filed.
    ***
    (B) For purposes of this rule, trial shall be deemed to
    commence on the date the trial judge calls the case to trial, or the
    defendant tenders a plea of guilty or nolo contendere.
    (C) In determining the period for commencement of trial,
    there shall be excluded therefrom:
    ***
    (3) such period of delay at any stage of the
    proceedings as results from:
    (a) the unavailability of the defendant or the
    defendant’s attorney;
    (b) any continuance granted at the request of
    the defendant or the defendant’s attorney.
    ____________________________________________
    3  We note that Rule 600 was amended on October 1, 2012, effective July 1,
    2013. However, Appellant was brought to trial in March of 2012, and thus,
    we shall analyze Appellant’s claim under the version of Rule 600 that was in
    effect at that time.
    -8-
    J-S72044-17
    ***
    (E) No defendant shall be held in pre-trial incarceration on
    a given case for a period exceeding 180 days excluding time
    described in paragraph (C) above. Any defendant held in excess
    of 180 days is entitled upon petition to immediate release on
    nominal bail.
    ***
    If the court, upon hearing, shall determine that the
    Commonwealth exercised due diligence and that the
    circumstances occasioning the postponement were beyond the
    control of the Commonwealth, the motion to dismiss shall be
    denied and the case shall be listed for trial on a date certain. If,
    on any successive listing of the case, the Commonwealth is not
    prepared to proceed to trial on the date fixed, the court shall
    determine whether the Commonwealth exercised due diligence in
    attempting to be prepared to proceed to trial. If, at any time, it
    is determined that the Commonwealth did not exercise due
    diligence, the court shall dismiss the charges and discharge the
    defendant.
    Pa.R.Crim.P. 600 (footnote added).
    While “Rule 600 requires the Commonwealth to try a defendant within
    365 days of the filing of a criminal complaint[,]. . .[a] defendant. . .is not
    automatically entitled to discharge under Rule 600 where trial starts more
    than 365 days after the filing of the complaint.” Commonwealth v. Roles,
    
    116 A.3d 122
    , 125–26 (Pa.Super. 2015).        “Rather, Rule 600 ‘provides for
    dismissal of charges only in cases in which the defendant has not been brought
    to trial within the term of the adjusted run date, after subtracting all
    excludable and excusable time.’” 
    Id. at 126
    (quotation omitted).             “The
    adjusted run date is calculated by adding to the mechanical run date, i.e., the
    date 365 days from the complaint, both excludable and excusable delay.” 
    Id. -9- J-S72044-17
    “Excludable time includes delay caused by the defendant or his lawyer[,]
    [whereas] excusable delay occurs where the delay is caused by ‘circumstances
    beyond the Commonwealth’s control and despite its due diligence.’” 
    Id. (quotation omitted).
    “Due diligence is a fact-specific concept that must be
    determined on a case-by-case basis. Due diligence does not require perfect
    vigilance and punctilious care, but rather a showing by the Commonwealth
    that a reasonable effort has been put forth.” 
    Id. (quoting Commonwealth
    v. Armstrong, 
    74 A.3d 228
    , 236 (Pa.Super. 2013)). Further, “judicial delay
    is a justifiable basis for an extension of time if the Commonwealth is ready to
    proceed.” Commonwealth v. Hunt, 
    858 A.2d 1234
    , 1241 (Pa.Super. 2004)
    (en banc) (quotation marks and quotation omitted).
    Here, in finding no merit to Appellant’s underlying Rule 600 claim, the
    PCRA court relevantly indicated the following:
    In the instant case, 188 days of the delay were excludable:
    35 days due to [Appellant] not having an attorney, and 153 days
    due to defense requests for continuances. In addition, 540
    excusable days were due to the difficulty, by the court, in
    scheduling a capital case for trial. [For instance, on September
    20, 2010, the trial court listed the case for trial on March 26, 2012,
    ruling all but twelve days, which was attributed to the
    Commonwealth’s request not to schedule trial during the weeks of
    Christmas and New Year’s Day, was excusable.]                When all
    excludable and excusable time is considered, [Appellant] was
    brought to trial 165 days after his arrest. Thus, the case was tried
    within the time allotted by Rule 600.
    PCRA Court Opinion, filed 6/28/17, at 8.
    We agree with the PCRA court’s analysis in this regard and, further,
    agree that trial counsel cannot be deemed ineffective in failing to raise a
    - 10 -
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    meritless claim.4 See 
    Johnson, supra
    .              In this vein, we note that we reject
    Appellant’s suggestion that his defense counsel’s requests for continuances do
    not constitute “excludable time” for Rule 600 purposes. Rule 600 clearly holds
    otherwise. See Pa.R.Crim.P. 600(C)(3).
    In his next issue, Appellant contends his direct appeal counsel was
    ineffective in failing to submit relevant holdings/authority regarding his after-
    discovered evidence claim (i.e., a November 5, 2013, article from The
    Philadelphia Daily News indicating two homicide detectives had coerced
    confessions from other criminal defendants). Appellant argues that, had
    counsel adequately developed the claim on appeal, this Court would not have
    found waiver on direct appeal and, additionally, would have remanded for an
    evidentiary hearing or provided some other relief.
    Our Supreme Court has held that, to prevail on a claim of appellate
    counsel ineffectiveness with regard to the manner in which a claim was
    litigated on direct appeal, “the PCRA petitioner must show exactly how
    appellate counsel was ineffective, by offering additional evidence or controlling
    authority, missed by direct appeal counsel, that would have changed the
    appeal outcome[.]” Commonwealth v. Koehler, 
    614 Pa. 159
    , 
    36 A.3d 121
    ,
    142 (2012) (quotation marks and quotation omitted).
    Further:
    ____________________________________________
    4Further, direct appeal counsel cannot be deemed ineffective in this regard.
    See Rykard, supra.
    - 11 -
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    To warrant a new trial based on after-discovered evidence,
    the appellant must show that the evidence “(1) could not have
    been obtained prior to trial by exercising reasonable diligence; (2)
    is not merely corroborative or cumulative; (3) will not be used
    solely to impeach a witness’s credibility; and (4) would likely result
    in a different verdict.” Commonwealth v. Castro, 
    625 Pa. 582
    ,
    588, 
    93 A.3d 818
    , 821 (2014) (quoting Commonwealth v.
    Pagan, 
    597 Pa. 69
    , 
    950 A.2d 270
    , 292 (2008)).
    ***
    We acknowledge that in Castro, our Supreme Court held
    that allegations in a newspaper article “do not constitute
    evidence” and thus, were not sufficient to support a motion for an
    evidentiary hearing or a new trial. The Supreme Court specifically
    stated:
    [a]llegations in the media, whether true or false, are
    no more evidence than allegations in any other out-
    of-court situation. Nothing in these allegations even
    read in the broadest sense, can be described as
    “evidence,” and references to the officer being under
    investigation for misconduct contains no information
    regarding what evidence existed to substantiate this
    averment. One cannot glean from these bald
    allegations what evidence of misconduct [the]
    appellee intended to produce at the hearing.
    
    Castro, 625 Pa. at 595
    , 93 A.3d at 825. As “an evidentiary
    hearing is not meant to function as a fishing expedition for any
    possible evidence that may support some speculative claim,” the
    Supreme Court concluded that Castro “needed to do more than
    present an article pointing to allegations that if true have the
    potential to aid his cause; he needed to clearly articulate in his
    motion what evidence he would present to meet the test.” 
    Id. at 598–99,
    93 A.3d at 828.
    Commonwealth v. Brown, 
    134 A.3d 1097
    , 1108-09 (Pa.Super. 2016).
    In the case sub judice, notwithstanding the fact direct appeal counsel
    may have been derelict in failing to develop the motion properly on direct
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    appeal with citation to relevant authority so as to avoid waiver, we conclude
    Appellant is not entitled to relief.
    Under Castro, the newspaper article Appellant attached to his petition
    is not “evidence.” Further, as the PCRA court held:
    [Appellant] references. . .a newspaper article accusing Detective
    James Pitts and Detective Omar Jenkins of coercing statements
    from witnesses in other cases. [Appellant] [did not allege in the
    trial court] that the statement he gave to detectives was coerced.
    Indeed, had [Appellant’s] statement been coerced, that fact would
    have been known to him and could have been raised during the
    trial.
    PCRA Court Opinion, filed 6/28/17, at 9.
    Therefore, at most, Appellant could have utilized the newspaper article
    to attack the credibility of witnesses who testified that Appellant’s confession
    was voluntary. Accordingly, even if the item identified by Appellant comprised
    relevant evidence, it would not meet the four-prong admissibility test provided
    in Castro as an appellant seeking a new trial must demonstrate that he will
    not use the alleged after-discovered evidence “solely to impeach a witness’s
    credibility.” Castro, 
    625 Pa. 582
    , 93 A.2d at 821 n.7. Accordingly, Appellant
    is not entitled to relief on his allegation of ineffective assistance of appellate
    counsel in connection with his after-discovered evidence claim.
    In his next issue, Appellant contends that appellate counsel was
    ineffective in failing to cite legal precedent that would have persuaded this
    Court on direct appeal that the trial court abused its discretion in denying
    Appellant’s request for a continuance so that he could be represented by the
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    attorney of his choice during the jury trial proceedings. In essence, Appellant
    contends that appellate counsel was ineffective in the manner in which he
    litigated the issue on direct appeal. We conclude no relief is due.
    Appellant claims that, in developing the argument on appeal, direct
    appeal counsel should have cited to Commonwealth v. Prysock, 
    972 A.2d 539
    (Pa.Super. 2009), since such was directly on point and factually
    indistinguishable from his case. Appellant is correct that, in Prysock, a panel
    of this Court held that the trial court abused its discretion in denying an
    appellant’s request for a continuance in order to secure new counsel.
    However,   Appellant    is   mistaken   in    his   assertion   that   Prysock   is
    indistinguishable from the case sub judice.
    In concluding the trial court erred in denying the appellant’s request for
    a continuance in Prysock, a panel of this Court held the following:
    Here, the record does not establish that any of the factors
    which we rely on in ascertaining whether the swift administration
    of justice would be vitiated by granting the continuance were
    present. Although the underlying criminal activity in this matter
    occurred in December 2006, [the] appellant was not charged until
    May 2007, and counsel was not appointed until some time after
    June 28, 2007, less than thirty days prior to the scheduled trial
    date of August 8, 2007.           While the trial court and the
    Commonwealth argue that this trial date was continued, at least
    in part, so that [the] appellant could retain private counsel, there
    is nothing in the record which substantiates this claim[.]
    There is also no indication in the record that [the] appellant
    was ever personally warned that he needed to retain counsel by a
    specific date or that no further continuances would be granted
    after the trial was initially continued. Also, the record
    demonstrates that [the] appellant was incarcerated in a state
    correctional facility at all times since December 2006, making it
    difficult for him to retain counsel in Allegheny County; however,
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    his family did obtain counsel to represent him, who attempted to
    enter his appearance on November 2, 2007. Thus, it was apparent
    that [the] appellant was not attempting to unreasonably delay the
    trial proceedings by claiming that he was going to retain private
    counsel when he had no means or intention of doing so.
    Further, the trial court relied on a single factor in making its
    decision not to grant the requested continuances, the fact of the
    prior continuance on August 8, 2007. The record reflects that the
    trial court failed to make any inquiry whatsoever into the nature
    of the dispute between [the] appellant and appointed counsel, and
    thus failed to make the type of detailed factual findings that we
    have previously commended and in their absence have found an
    abuse of discretion.
    
    Prysock, 972 A.2d at 544-45
    (footnotes, citations, quotation marks, and
    quotation omitted).
    By contrast, in the case sub judice, in concluding the trial court did not
    err in denying Appellant’s request for a continuance, a panel of this Court held
    the following on direct appeal:
    Instantly, the parties appeared for trial on March 27, 2012.
    At that time, Attorney Rudenstein orally requested a continuance,
    stating Appellant wanted more time to retain Attorney Peruto as
    trial counsel. The court asked Attorney Rudenstein if he was
    prepared to start trial, and Attorney Rudenstein answered
    affirmatively. The court also conducted an on-the-record
    teleconference with Attorney Peruto. During the teleconference,
    the following exchange occurred:
    [ATTORNEY PERUTO]: I am not fully retained. I have
    not entered my appearance. I did call the Assistant
    District Attorney last week to see if there was any shot
    at a third degree plea at all in this case, and I don’t
    think we touched base after that.
    [THE COMMONWEALTH]: That’s true.
    [ATTORNEY PERUTO]: There is a—
    THE COURT: Mr. Peruto, you either have to be in or
    out. Now, if you’re not in, then Mr. Rudenstein is
    going to proceed to try the case today. It’s listed
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    today, and I can’t continue the case just because you
    might at some point in the future represent
    [Appellant]. You have to tell me whether you’re in or
    out.
    [ATTORNEY PERUTO]: I agree with you, and I am not
    in.
    Commonwealth v. Hart, 1231 EDA 2012, *6-7 (Pa.Super. filed 3/21/14)
    (unpublished memorandum) (footnote and citation to record omitted).
    Moreover, this Court noted that Attorney Rudenstein participated in jury
    selection on March 27, 2012; however, when the proceedings commenced on
    March 28, 2012, the trial court acknowledged that another attorney, Attorney
    Johnson, was present at the behest of Appellant’s family.        See 
    id. at 8.
    However, Attorney Johnson had not accepted any payment from the family,
    had not formally entered an appearance, had not met with Appellant, and was
    not prepared for trial. See 
    id. The trial
    court provided a one-hour recess so
    that Attorney Johnson could speak with Attorney Rudenstein and Appellant in
    order to permit further discussion regarding the plea offer; however, upon
    expiration of the one-hour recess, and with Appellant’s continued insistence
    he wanted to be tried by a jury, the trial court denied Appellant’s request for
    a continuance. This Court concluded on appeal that the trial court properly
    denied Appellant’s eleventh-hour request for a continuance since the request
    served to “unreasonably clog the machinery of justice or hamper and delay
    the state’s efforts to effectively administer justice.” See 
    id. at 10
    (quotation
    marks and quotation omitted).
    - 16 -
    J-S72044-17
    Based on the aforementioned, we conclude Prysock is distinguishable
    from the case sub judice, and thus, appellate counsel would not have
    succeeded on appeal with the citation and discussion thereof. Accordingly,
    appellate counsel was not ineffective in failing to cite to this authority in
    support of Appellant’s issue on direct appeal. See Koehler, 
    614 Pa. 159
    , 363
    A.3d at 142 (“To succeed on a stand-alone claim of appellate counsel’s
    ineffectiveness, a PCRA petitioner must demonstrate that appellate counsel
    was ineffective in the manner by which he litigated the claim on appeal.”).
    In his next issue, Appellant contends trial counsel was ineffective in
    failing to request a mistrial in response to prosecutorial misconduct occurring
    during the prosecutor’s closing argument to the jury.      We conclude no relief
    is due.
    In support of his argument, Appellant cites to the following portion of
    the prosecutor’s closing argument:
    [Appellant] acted as her judge, her jury, and her executioner and
    a self-proclaimed abortionist of that baby, because he shot her in
    the head, the baby died, too.
    N.T., 3/30/12, at 52.
    Our review of the certified record reveals that trial counsel immediately
    objected to the prosecutor’s statement; however, the trial court overruled the
    objection.   
    Id. at 53.
        Moreover, and contrary to Appellant’s mistaken
    assertion, trial counsel specifically requested a mistrial due to the prosecutor’s
    statement. 
    Id. at 82.
    The trial court denied the request for a mistrial, but
    - 17 -
    J-S72044-17
    indicated it planned to give a curative instruction. 
    Id. at 82-84.
    Thereafter,
    the trial court gave the following curative instruction:
    [D]uring her closing argument, the District Attorney mentioned
    the word “abortion.” This case is not about abortion. That was
    inappropriate. This case is about the murder of an unborn child,
    not abortion. So you will please disregard that.
    
    Id. at 88.
    As is evident, there is no merit to Appellant’s claim that trial counsel
    failed to request a mistrial.5 Therefore, counsel cannot be deemed ineffective
    on this basis.
    In his next issue, Appellant contends direct appeal counsel was
    ineffective in ensuring that the transcript related to jury selection was
    transcribed and reviewed by him prior to the filing of a direct appeal on
    Appellant’s behalf.
    As the PCRA court concluded “[Appellant] has not advanced any claim
    or provided any reasons as to why the notes would be required.” PCRA Court
    Opinion, filed 6/28/17, at 11. In essence, the PCRA court concluded Appellant
    failed to demonstrate how he was prejudiced by direct appeal counsel’s
    omission. See Commonwealth v. Pierce, 
    515 Pa. 153
    , 
    527 A.2d 973
    , 977
    ____________________________________________
    5 To the extent Appellant contends trial counsel was ineffective in failing to
    object to the cautionary instruction, we note that, aside from asserting the
    trial court’s curative instruction did not remove the alleged “taint” from the
    prosecutor’s statement, Appellant has not developed the argument further.
    - 18 -
    J-S72044-17
    (1987) (holding a defendant raising claims of ineffective assistance of counsel
    is required to show actual prejudice — that is, that counsel's conduct “had an
    adverse effect on the outcome of the proceedings”). We agree and conclude
    Appellant is not entitled to relief.6 
    Johnson, supra
    .
    In his final issue, Appellant contends the PCRA court erred in dismissing
    his petition without an evidentiary hearing.
    “A PCRA petitioner is not entitled to an evidentiary hearing as a matter
    of right, but only where the petition presents genuine issues of material fact.
    A PCRA court’s decision denying a claim without a hearing may only be
    reversed upon a finding of an abuse of discretion.”        Commonwealth v.
    Walker, 
    613 Pa. 601
    , 
    36 A.3d 1
    , 17 (2011) (citation omitted).
    In the case sub judice, the PCRA court indicated it did not hold an
    evidentiary hearing since there were no genuine issues of material fact in
    controversy. See PCRA Court Opinion, filed 6/28/17, at 11-12. We find no
    abuse of discretion. See 
    Walker, supra
    .
    For all of the foregoing reasons, we affirm the PCRA court’s dismissal of
    Appellant’s first PCRA petition.
    Affirmed.
    ____________________________________________
    6 Appellant further asserts PCRA counsel was ineffective in arguing in his “no-
    merit” letter that there was no merit to this contention. To the extent
    Appellant preserved this issue below, we conclude he is not otherwise entitled
    to relief. See Rykard, supra.
    - 19 -
    J-S72044-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/1/2017
    - 20 -
    

Document Info

Docket Number: 3779 EDA 2016

Filed Date: 12/1/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024