Com. v. Noble, R. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICARDO L. NOBLE :
:
Appellant : No. 153 WDA 2024
Appeal from the PCRA Order Entered January 5, 2024
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000318-1992
BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: October 1, 2024
Appellant, Ricardo L. Noble, appeals pro se from the post-conviction
court’s January 5, 2024 order dismissing his timely-filed petition under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
We glean the following facts and procedural history of Noble’s case from
the certified record and prior decisions of this Court.
In 1992, Noble was found guilty following a jury trial of second-
degree murder, robbery and criminal conspiracy after he and two
other individuals robbed and killed a cab driver. Commonwealth
v. Noble, 1770 Pittsburgh 1992, at *1 (Pa. Super. February 3,
1994) (unpublished memorandum), allocatur denied, 647 A.2d
899 (Pa. 1994). Because there was conflicting evidence regarding
which of the three defendants actually shot and killed the victim,
Noble was convicted of second-degree murder because the killing
occurred during the course of a robbery. At the time of the
murder, Noble was 15 years old. Noble was sentenced to life in
prison without the possibility of parole, as was mandatory at the
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time, and this [C]ourt affirmed the judgment of sentence. [See
id.]
Commonwealth v. Noble, No. 204 WDA 2020, unpublished memorandum
at *2 (Pa. Super. filed July 21, 2020).
Decades after Noble’s conviction, the United States Supreme Court
decided Miller v. Alabama, 576 U.S. 460 (2012), and Montgomery v.
Louisiana, 577 U.S. 190 (2016).
[I]n Miller, the United States Supreme Court held that it is
unconstitutional for states to sentence juvenile homicide
defendants to mandatory sentences of life imprisonment without
the possibility of parole. In Montgomery, the Court determined
that the Miller holding constituted a substantive rule of
constitutional law that must be applied retroactively to cases on
collateral review. Following the decision in Montgomery, Noble
filed a … []PCRA[] petition alleging that his sentence was illegal.
The trial court granted relief, vacating his judgment of sentence
and scheduling a resentencing hearing in accordance with Miller
and Montgomery.
Noble, No. 204 WDA 2020, unpublished memorandum at *2-3 (citations
omitted).
Noble’s resentencing hearing was conducted on January 29, 2018.
Noble was represented at that proceeding by Robert Barbato.1 At the close of
Noble’s resentencing hearing, the court imposed a term of 40 years’ to life
incarceration for his conviction of second-degree murder. Noble filed a timely
appeal, after which Noble indicated his desire to proceed pro se. We remanded
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1 As Robert Barbato has since been disbarred, we refer to him simply as
“Barbato” herein, rather than “Attorney Barbato.”
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for the trial court to conduct a Grazier2 hearing, following which Noble was
permitted to represent himself on appeal. This Court then remanded Noble’s
case again, this time for the limited purpose of allowing him to file post-
sentence motions. See Commonwealth v. Noble, No. 420 WDA 2018,
unpublished memorandum at *22 (Pa. Super. filed Apr. 15, 2019).
On remand, Noble filed a timely, pro se post-sentence motion, which
was denied. He then filed a timely, pro se appeal from his January 29, 2018
judgment of sentence. After this Court affirmed Noble’s sentence, our
Supreme Court denied his petition for allowance of appeal. See
Commonwealth v. Noble, 239 A.3d 85 (Pa. Super. 2020) (unpublished
memorandum), appeal denied, 279 A.3d 1181 (Pa. 2022). Noble then filed a
petition for writ of certiorari with the United States Supreme Court, which was
also denied on October 17, 2022.
On August 21, 2023, Noble filed a pro se PCRA petition. Therein, he
challenged the legality of his sentence, argued that Barbato acted ineffectively
in various ways when representing him at the resentencing hearing, and
raised several claims of error by the trial and resentencing courts. PCRA
counsel was appointed, but after Noble informed counsel that he wished to
proceed pro se, counsel filed a petition to withdraw. The PCRA court
conducted another Grazier hearing, after which it granted counsel’s petition
to withdraw and again permitted Noble to proceed pro se. On December 7,
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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2023, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Noble’s
petition without a hearing. Noble filed a pro se response, but on January 5,
2024, the court issued an order dismissing his petition.
Noble then filed a timely, pro se notice of appeal. He also complied with
the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed a Rule 1925(a) opinion on March 8,
2024, indicating that it was relying on the rationale set forth in its Rule 907
notice for dismissing Noble’s petition.
In Noble’s pro se, handwritten brief, he states the following fifteen issues
for this Court’s review, which we reproduce verbatim:
1. Did court abuse discretion by ignoring and not addressing the
issue that stated that, at Juvenile Lifer appellant’s
Resentencing in 2018, Resentencing Judge recanted the only
reason he claimed he denied decertifying appellant to Juvenile
system in 1992 because it was proven False, thus any sentence
or conviction on said charges in adult criminal system is illegal,
unconstitutional, null and void?
2. Did court abuse discretion by failing to find that the
cocaine/marijuana addicted court appointed attorney (Robert
Barbato) was ineffective/prejudiced appellant by
maliciously/falsely stating in sentence memorandum that
appellant does not deny being guilty without appellant’s
knowledge or consent, despite knowing that appellant always
stated (and the evidence proved) he is innocent of all charges?
3. Did court abuse discretion by failing to find that
cocaine/marijuana addicted attorney (Robert Barbato) was
ineffective/prejudiced appellant by requesting 20 to 60 year
sentence in sentence memorandum without appellant’s
knowledge or consent, then against appellant’s repeated
objections at Resentencing Hearing?
4. Did court abuse discretion by failing to find that the
cocaine/marijuana addicted attorney (Robert Barbato) was
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ineffective by withholding documents and refusing to
communicate with appellant about case?
5. Did court abuse discretion by failing to find that
cocaine/marijuana addicted attorney (Barbato) was
ineffective/erred by making negative, false, and misleading
statements against appellant in sentence memorandum and
only reviewing and agreeing with portions of appellant’s prison
file provided by prosecution and prosecution’s negative, false,
and misleading interpretation of it?
6. Did court abuse discretion by failing to find that
cocaine/marijuana addicted attorney (Barbato) was ineffective
for not objecting to prosecution’s negative, false, and
misleading prejudicial statements in sentence memorandum
and actions and statement at Resentencing?
7. Did court abuse discretion by failing to find that
cocaine/marijuana addicted attorney (Barbato) was
ineffective/erred by compiling and submitting incomplete
mitigation evaluation and report with negative, false, and
misleading information knowingly?
8. Did court abuse discretion by failing to find that
cocaine/marijuana addicted attorney (Barbato) was
ineffective/erred by attacking favorable recommendations of
expert witnesses who recommended that appellant be placed
in juvenile system at 1992 Decertification Hearing in
01/22/2018 sentence memorandum?
9. Did court abuse discretion by not addressing each PCRA issue
including, but not limited to, all ineffective assistance of
counsel claims against attorney Barbato?
10. Did court abuse discretion by ignoring attorney Barbato’s
admission that his alcohol, marijuana, and cocaine addiction
caused him to neglect/sabotage his clients’ cases from 2014 to
2020?
11. Did court abuse discretion by failing to find that
cocaine/marijuana addicted attorney (Barbato) was
ineffective/erred by not objecting to and seeking to correct
significant errors in the Resentence Hearing
transcript/transcription, thus prejudicing appellant’s past,
present, and future court proceedings?
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12. Did court abuse discretion by ignoring issue that a sentence
and conviction form a single judgment for appellate review,
thus re-opening and/or new judgment of sentence challenge
for review also allows challenging conviction errors for review?
13. Did court abuse discretion by not finding that trial judge
(Shad Connelly) erred/abused discretion by not granting
demurrer to all charges at trial?
14. Did court abuse discretion by not finding that trial judge
abused discretion by restricting appellant’s trial attorney
(James Moran) cross-examination of prosecution witness
(Diedra Carr) as to what she was told by defendants Johnson
and Howard about defendants’ alleged intentions when cab was
called?
15. Did court abuse discretion by not finding that trial judge
abused discretion by refusing to remove jurors with
disqualifying views including, but not limited to, Mary Hayes,
who asked to be removed twice because she can’t be fair and
impartial because she personally knows Erie Police Officer
Jerome Odom, his cousin (adverse alleged co-defendant
Stephon Johnson), and other prosecution witnesses?
See Appellant’s Brief at 2-4 (emphasis in original).3
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3 “[I]t has been held that when an appellant raises an extraordinary number
of issues on appeal, as in this case, a presumption arises that there is no merit
to them.” Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995)
(citation omitted). Indeed, “[a]ppellate advocacy is measured by
effectiveness, not loquaciousness.” Id. (citation omitted). Noble’s
loquaciousness in this case extends beyond his appellate brief, as he has also
filed hundreds of pages of exhibits, and several pro se petitions seeking
various forms of relief.
In one pro se petition, Noble asked this Court to direct the PCRA court
and/or Commonwealth to turn over various documents to him. On July 15,
2024, we issued a per curiam order denying Noble’s petition, without prejudice
to his “right to apply directly to the PCRA court for the requested relief.”
Order, 7/15/24, at 1 (single page). On July 29, 2024, Noble filed a pro se
document entitled “Notice to Court: Attached Motion to Lower Court[,]” which
this Court labeled an “Application for Reconsideration.” Therein, Noble
claimed that he filed a motion for documents with the PCRA court, and asked
(Footnote Continued Next Page)
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Before delving into Noble’s claims, we recognize that:
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error.” Commonwealth v. Johnson, …
966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id.Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013)
Noble first argues that his conviction and sentence are illegal, as his
case was unconstitutionally tried in adult court rather than juvenile court.
Preliminarily, we explain that, when a juvenile has committed the crime of
murder, his case goes directly to the criminal division of adult court, but he
may request treatment within the juvenile system through a transfer process
called “decertification.” Commonwealth v. Sanders, 814 A.2d 1248, 1250
(Pa. Super. 2003). It is the juvenile’s burden to prove, “by a preponderance
of the evidence[,] that the transfer will serve the public interest.” Id. (quoting
42 Pa.C.S. § 6322(a)). The Juvenile Act, 42 Pa.C.S. §§ 6301-6375, sets forth
a list of factors the decertification court must consider in determining whether
the juvenile has demonstrated that transfer to juvenile court will serve the
____________________________________________
that we stay this appeal pending the PCRA court’s decision. On August 5,
2024, this Court issued a per curiam order denying Noble’s “Application for
Reconsideration.” On August 14, 2024, Noble filed a pro se “Application for
Clarification.” It appears from that document that Noble is confused as to the
status of his instant appeal. Our Court deferred disposition of Noble’s
“Application for Clarification” to this merits panel, and we now deny it as moot,
given that our issuance of this memorandum decision shall clarify the status
of this appeal for Appellant.
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public interest, including: the impact of the offense on the victim(s) and
community; the threat to public safety; the nature and circumstances of the
offense; and whether the child is amenable to treatment, supervision or
rehabilitation as a juvenile considering, inter alia, their age, mental capacity,
maturity, and previous record, if any. See 42 Pa.C.S. § 6355(a)(4)(iii).
Instantly, Noble contends that, in denying his pretrial decertification
request, the trial judge relied solely on the fact that there was “uncontradicted
evidence” that Noble was the shooter in this case. Noble’s Brief at 9. He
claims, however, that the same judge then “recanted” this reasoning at
Noble’s 2018 resentencing hearing, when the judge stated: “No one is saying
today, at least I’m not, that you are here as the shooter. That has not been
proven in court, at least not up to this point.” N.T. Resentencing Hearing,
1/29/18, at 30. Noble now insists that, because the judge retracted his
determination that Noble was the shooter in this case, which was the sole
basis for denying Noble’s decertification request, it renders Noble’s conviction
and sentencing in adult court as “illegal, unconstitutional, null and void.”
Noble’s Brief at 15.
No relief is due. Initially, we deem Noble’s challenge to the denial of his
decertification as untimely. This Court
held in Commonwealth v. Dehart, 730 A.2d 991, 994 n. 2
(Pa.Super.1999), [that] a successful first PCRA petition does not
“reset the clock” for the calculation of the finality of the judgment
of sentence for purposes of the PCRA where the relief granted in
the first petition neither restored a petitioner’s direct appeal rights
nor disturbed his conviction, but, rather, affected his sentence
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only. We reached this conclusion because the purpose of the PCRA
is to prevent an unfair conviction.
Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) (citing
Dehart, 730 A.2d at 994 n. 2).
Here, Noble’s first PCRA petition was successful, in that his life-with-
parole sentence was vacated and he was afforded resentencing. That petition
did not disturb Noble’s convictions, which therefore became final in 1994 after
our Supreme Court denied his petition for allowance of appeal and he did not
seek further review by the United States Supreme Court. Consequently,
Noble’s present claim that the trial court improperly denied his request for
decertification is untimely. Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States
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or the Supreme Court of Pennsylvania after the time
period provided in this section and has been held by
that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Instantly, even if we considered Noble’s argument that the judge’s 2018
“recantation” of his basis for denying Noble’s decertification request as an
attempt to satisfy the new-fact exception to the timeliness requirement, that
claim would fail. Essentially, in stating at the resentencing hearing that Noble
was not proven to be the shooter, the judge was referring to the inadequacy
of the evidence presented at trial to prove that fact. Clearly, Noble was
present at trial and heard the same evidence that the trial judge and jury
heard. Thus, Noble could have argued, before 2023, that the evidence failed
to prove he was the shooter and, consequently, the trial court erred by
denying his decertification request solely on that basis. In other words, the
judge’s statement at the 2018 resentencing hearing did not reveal any ‘new
fact’ to Noble that he did not already know and could have raised sooner, had
he exercised due diligence.
In any event, we also point out that the record belies Noble’s claim that
the trial court denied his decertification request solely because it believed he
was the shooter in this case. Namely, the court’s order denying decertification
states that it considered
all of [Noble’s] and [the] Commonwealth’s exhibits, as well as
[Noble’s] age; mental capacity; maturity; degree of criminal
sophistication exhibited by the child; previous records, if any; the
nature and extent of any prior delinquent history, including the
success or failure of any previous attempts by the Juvenile Court
to rehabilitate the child; whether the child can be rehabilitated
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prior to the expiration of the Juvenile Court jurisdiction; probation
or institutional reports, if any; the nature and circumstances of
the acts for which the transfer is sought; and any other relevant
factors….
Order, 5/8/92, at 1 (single page). Additionally, although the court stated, in
its subsequent opinion, that the evidence indicated Noble filed the fatal shot,
the court also “concluded that no psychological or psychiatric reasons
warranted the transfer of [Noble] out of criminal court.” Opinion, 2/8/93, at
12 (citation omitted). This record demonstrates that the court did not deny
Noble’s request for decertification solely on the grounds that he was the
shooter, but for various other reasons, as well. Thus, even if timely, we would
conclude that the judge’s statements at Noble’s 2018 resentencing hearing do
not demonstrate that the same judge committed an abuse of discretion in
denying Noble’s decertification request. See Sanders, 814 A.2d at 1250(“Decisions of whether to grant decertification will not be overturned absent a
gross abuse of discretion.”) (citations omitted).
In Noble’s second through eighth issues, he contends that Barbato acted
ineffectively in representing him during the resentencing process. Many of
Noble’s claims include repetitive and overlapping arguments and, thus, we will
address all his ineffectiveness claims together, mindful of the following:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
“Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance
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was deficient and that such deficiency prejudiced him.”
[Commonwealth v.] Colavita, … 993 A.2d [874,] 886 [(Pa.
2010)] (citing Strickland [v. Washington, 466 U.S. 668 ...
(1984)]). In Pennsylvania, we have refined the Strickland
performance and prejudice test into a three-part inquiry. See
[Commonwealth v.] Pierce, [527 A.2d 973 (Pa. 1987)]. Thus,
to prove counsel ineffective, the petitioner must show that: (1)
his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali, …
10 A.3d 282, 291 (Pa. 2010). “If a petitioner fails to prove any of
these prongs, his claim fails.” Commonwealth v. Simpson, …
66 A.3d 253, 260 ([Pa.] 2013) (citation omitted). Generally,
counsel’s assistance is deemed constitutionally effective if he
chose a particular course of conduct that had some reasonable
basis designed to effectuate his client’s interests. See Ali, supra.
Where matters of strategy and tactics are concerned, “a finding
that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered
a potential for success substantially greater than the course
actually pursued.” Colavita, … 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, … 57 A.3d 607, 613 ([Pa.] 2012) (quotation, quotation
marks, and citation omitted). “‘[A] reasonable probability is a
probability that is sufficient to undermine confidence in the
outcome of the proceeding.’” Ali, … 10 A.3d at 291 (quoting
Commonwealth v. Collins, … 957 A.2d 237, 244 ([Pa.] 2008)
(citing Strickland, 466 U.S. at 694….)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Instantly, Noble claims that Barbato was ineffective in representing him
in numerous ways, largely due to the fact that from 2014 to 2020, Barbato
was addicted to cocaine, marijuana, and alcohol, which ultimately led to
Barbato’s arrest and conviction in 2020 for forgery and theft-related offenses
committed against several clients. Noble insists that Barbato’s misconduct in
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other clients’ cases supports his assertions that Barbato also acted
ineffectively in representing Noble in various ways.
For instance, Noble claims that Barbato failed to investigate “all
mitigating circumstances concerning [Noble] and [his] case[,]” and made
“negative, false, and misleading statements against Noble in [the] sentencing
memorandum.” Noble’s Brief at 22. More specifically, Noble takes issue with
the fact that Barbato did not claim Noble was innocent in the sentencing
memorandum but, instead, he made statements like Noble “shares guilt” and
“is not looking to be absolved from any wrongdoing….” Id. at 18. Noble also
contends that Barbato acted ineffectively by stating that Noble was
“requesting a 20 to 60 year sentence” when instead, the “only sentence [Noble
was] requesting [was] immediate release from incarceration and no parole or
probation time after release.” Id. at 19.
Noble further asserts that Barbato refused “to communicate with
[Noble] about [the] case” and “withheld documents and filings” from him,
including “witness statements, trial transcripts, and appeal [b]riefs.” Id. at
21. Noble also maintains that Barbato failed to review Noble’s actual prison
file, and improperly relied on the “Juvenile Lifer Information Packet” that was
“provided by the prosecution….” Id. at 22. Noble contends that, had Barbato
examined his actual prison file, Barbato would have discovered – and then
challenged – the accuracy of the information provided to the resentencing
court by the Commonwealth about Noble’s misconducts in prison. Noble then
devotes many pages of his brief to identifying the alleged inaccuracies in the
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Commonwealth’s sentencing memorandum regarding his prison record. See
id. at 24-35. Noble insists that, rather than attacking these inaccuracies,
Barbato
made [Noble’s] sentenc[ing] memorandum to mainly
complement, not oppose, [the] prosecution’s sentenc[ing]
memorandum. Barbato did not request or review [Noble’s] entire
prison file relevant to resentencing and only reviewed and agreed
with [the] portions of [Noble’s] prison file provided by [the]
prosecution and [the] prosecution’s negative, false, and
misleading interpretation of it.
Id. at 35.
Noble also claims that Barbato acted ineffectively by hiring William Niles
as the mitigation specialist who compiled Noble’s mitigation report. According
to Noble, the report submitted by Niles “did not present any mitigating
factors/evidence regarding [the] case” and “falsely state[d] that [Noble was]
‘offering’ to accept a sentence of 20 to 60 years, without [Noble’s] knowledge
or consent.” Id. at 41. Noble insists that Niles and Barbato “maliciously
crafted said report to avoid any facts/evidence of [Noble’s] innocence and [to]
give[] [the] false impression that [Noble was] agreeing to guilt[, d]espite [the]
fact that [Noble had] always declared his innocence….” Id. at 41-42. Noble
also complains that the mitigation report is inaccurate regarding his prison
history, and that Barbato and Niles refused to meet with him to discuss his
actual prison record. Id. at 42-43.
Noble has failed to demonstrate that he was prejudiced by Barbato’s
alleged ineffectiveness. Our review of the record, and this Court’s decision on
direct appeal in which Noble challenged the legality and discretionary aspects
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of his sentence, convinces us that Noble’s sentence would not have been
different, even had Barbato represented Noble exactly as Noble claims he
should have.
For instance, in Noble’s direct appeal from his resentencing, this Court
detailed the evidence presented to the resentencing court, and what
transpired during the resentencing proceeding, as follows:
Prior to the resentencing hearing, [Barbato] filed a sentencing
memorandum requesting a sentence of time served or 20 to 60
years’ incarceration. [Barbato] argued that the doctor who
evaluated Noble in 1992 had opined that he had a strong
possibility of rehabilitation with proper counseling and treatment.
Noble had struggled in school at the time, in part because he had
to care for his siblings due to his mother’s alcoholism, but he did
not suffer from addiction or mental illness himself. He had one
prior juvenile adjudication for terroristic threats following an
altercation with his stepfather after Noble witnessed him abusing
his mother. [Barbato] argued that Noble became very religious
following his incarceration and sought parole so that he could
become a productive member of society. [Barbato] reiterated that
Noble was not proven to be the shooter and argued that he did
not pose a danger to society if released. Finally, the memorandum
argued that because there was no constitutional sentencing
scheme for second-degree murder at the time of his 1992
sentencing, Noble should be sentenced based on the sentencing
statute for the most serious lesser-included offense of third-
degree murder. Based on that statute, Noble would be sentenced
to a maximum of 20 years of incarceration or time served. The
memorandum requested in the alternative that Noble be
sentenced to 20 to 60 years’ incarceration, as Noble’s co-
defendant had been sentenced to 20 to 50 years of incarceration
following resentencing.
The Commonwealth filed a sentencing memorandum requesting
that the trial court resentence Noble to 50 years to life
imprisonment. The Commonwealth asserted that while Noble was
convicted of second-degree murder because the homicide
occurred during the course of a robbery, it believed Noble was the
actual shooter. The Commonwealth’s memorandum focused on
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Noble’s prison record, listing his numerous misconducts, mostly
for refusal to obey an order, which resulted in his placement in
disciplinary custody over the years. He incurred two misconducts
for assault during his incarceration, including one in 2014 for an
assault on a staff member. Noble also pled guilty in 2005 for
Possessing Weapons or Implements for Escape and was sentenced
to 1 to 2 years of incarceration. The Commonwealth attached
prison records to its memorandum setting forth Noble’s
misconducts and 2005 criminal conviction in more detail. The
Commonwealth argued that a sentence of 50 years to life
imprisonment was necessary because Noble remained a threat to
the community and had not shown meaningful rehabilitation
during his incarceration.
At the beginning of the resentencing hearing, Noble spoke on his
own behalf and informed the trial court that he did not agree with
[Barbato’s] requested 20 to 60 year sentence. [N.T. Resentencing
Hearing] at 2-3. He maintained his innocence of the crimes and
asserted that he would only agree to a sentence of time served.
The trial court instructed him that if he was dissatisfied with his
attorney’s performance, Noble could file a PCRA petition raising
an ineffective assistance of counsel claim after the resentencing
hearing.
The first witness to testify on Noble’s behalf was Kaitlyn Dolak, a
case manager at GECAC.3 Dolak explained that she assists
individuals who are released from incarceration transition back
into the community by helping them find housing, employment,
mental health services and drug and alcohol services. The goal of
GECAC’s services is to assist in reintegrating into the community
and provide support services that reduce the risk of recidivism.
3 While not defined in the record, we understand this to refer
to the Greater Erie Community Action Committee. See
GECAC: Greater Erie Community Action Committee,
www.gecac.org, last visited 6/5/20.
Dolak interviewed Noble while he was incarcerated but did not
review any of his institutional records. She reported that after an
interview, GECAC accepted Noble into the program for intensive
case management services, which would include direct services
from the program for at least one year. She reported that Noble
was cooperative and receptive to services. Since he was
interested in HVAC training, GECAC would assist him [with] finding
a training program and providing transportation. Noble had
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reported that he would live with family if released and Dolak would
meet with him at least once a week to provide services.
Noble also presented testimony from Rahnay Ritchie, a friend who
had known Noble since middle school. Ritchie described Noble as
outgoing and bright and testified that Noble had never gotten into
trouble or fights when they knew each other. He believed the
robbery and murder was out of character for Noble at the time.
Emberly Noble, Noble’s sister, also testified that she exchanged
letters with Noble throughout his incarceration to give him
updates and information on their family. Emberly testified that
Noble frequently offered her advice and support for issues in her
personal life and was a positive influence on her before and after
his incarceration. She testified that he had been a protective older
brother before his incarceration.
Shadara Feliciano, Noble’s cousin, testified that she also wrote to
Noble on a weekly basis during his incarceration. She frequently
sought his advice, thought of him as a father figure, and viewed
him as a positive influence in her life. Feliciano testified that the
family would support Noble if he was released from incarceration
and help him transition back into the home. Carlajzah Mendez,
Noble’s niece, also testified that she views Noble as a father figure
and had sought his advice by writing him letters during his
incarceration. She testified that Noble provided her with support
and was a positive influence and encouraged her to pursue her
education.
Finally, Noble testified on his own behalf. He began by denying
all involvement in the robbery and murder. The trial court
reminded him that he had been convicted and the hearing was for
the purposes of resentencing only. In addition, the trial court
stated, “[n]o one is saying today, or at least I’m not, that you are
here as the shooter. That has not been proven in court, at least
not up to this point.” N.T. [Resentencing Hearing] at 30. The trial
court then directed Noble to focus his comments on factors
relevant to the resentencing, such as Noble’s character, what he
had accomplished in prison, and the ways in which he had changed
or stayed the same since his conviction. Noble argued that his
actions during the crime were a relevant factor in resentencing
pursuant to Miller, as it directed courts to consider the extent of
the defendant’s participation in the crime when sentencing
juveniles found guilty of murder. Noble then attempted to make
legal arguments regarding the proceedings at his decertification
hearing in 1992 and the alleged ex post facto application of the
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sentencing statute to his second-degree murder conviction. The
trial court repeatedly directed him to speak to his own character
and growth and to allow his attorney to make any relevant legal
arguments.
Noble testified that despite being incarcerated in an adult prison
since he was 16 years old, he has tried to better himself, “not get
caught up in a lot of negativity around [him], and also not become
a hardened criminal.” [Id.] at 36. He earned his GED and a
degree in African American History and Science. He testified that
he also attempted to educate himself outside of the prison’s formal
programs. He said that over the years he had attempted to be an
advocate for other prisoners who had been mistreated or wronged
while incarcerated, and he had written and published work
regarding solitary confinement. He acknowledged that he had
“some violent altercations” over the years, but said that he was
not a violent person and understood that there are better ways to
handle problems. He reiterated his innocence for the crimes for
which he was convicted and said he had tried over the years to
speak up against injustice in the court system. He again argued
that he did not belong in an adult prison and that he had been
confused by the court system for many years during and after his
initial trial proceedings.
The trial court again told Noble that he was convicted of the crimes
charged and should not make argument regarding his culpability.
The trial court also stated that it did not believe Noble did not
understand the trial proceedings and that Noble was an
“intelligent young man” who had understood the facts of the case
and the witnesses against him. Noble responded that his
confusion and frustration at his conviction had led to some of his
misconducts and violations while in prison, but that he understood
right and wrong and could not excuse his actions. He requested
that the trial court disregard [Barbato’s] sentencing
recommendation and resentence him to time served. Finally, he
acknowledged the victim’s family, saying “I’m very, very sorry for
your loss and your pain and suffering—the pain and suffering, and
I hope one day, you acknowledge the facts in this case have
proven I’m not the one who killed [the victim], and I’m deeply
sorry and remorseful for what happened. [Id.] at 43-44.
The Commonwealth called William Niles, [Barbato’s] expert who
authored a mitigation report. Niles testified that this case was the
first time he had written a mitigation report but he had worked
with former prisoners in the past. He opined in his report that
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Noble was a credit to his community in prison despite some
misconducts and assaults while incarcerated, including an assault
on a prison staff member. Based on interviews with Noble and his
family, Niles concluded that he had a low risk of reoffending if
released. He believed Noble was a credit to the community based
on letters he wrote advocating on behalf of other inmates. Niles
noted that Noble had maintained employment while incarcerated,
though he was suspended from his jobs at times and placed in
restricted housing following various violations.
The Commonwealth also presented testimony from Scott Cleaver,
the victim’s nephew. Cleaver testified that the victim had suffered
polio as a child and had health issues until his death as a result.
The victim’s mother died when he was a child and his father was
an alcoholic, and the victim developed alcoholism in his adulthood.
After retiring and becoming sober, he began driving a cab because
he “enjoyed people.” [Id.] at 51. Cleaver said that his family had
worried about the victim working as a cab driver because he was
incapable of protecting himself in the event of a robbery. Cleaver
testified that he was “positive” that Noble killed his uncle and
requested that the court impose a life sentence. [Id.] at 52.
Noble, No. 204 WDA 2020, unpublished memorandum at *3-10 (footnote
omitted; some brackets added).
In imposing Noble’s sentence, the trial court explained:
The [c]ourt would note first of all, that he finds there’s insufficient
evidence now, as there was back then as a matter of law, to
determine that [Noble] was, in fact, the shooter, and therefore,
he will not be sentenced with that as a factor.
The [c]ourt notes that [Noble] was 15 at the time of the crime,
and as the Supreme Court has said of people his age, there is
diminished mental capacity, and lack of culpability, and the [c]ourt
has considered that as well.
Although [Noble] was 15, he was of, at least, average intelligence.
He had no — or there was no evidence of any intellectual disability,
and he did not suffer from any mental illness as a prior
psychological report has indicated that was done at the time.
[Noble] indicates he has remorse for what happened, but not for
his participation in what happened, and refuses to accept any
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responsibility for that, even though the verdict indicates
otherwise.
The [c]ourt has also considered the circumstances of [Noble’s]
childhood, the fact that he obtained a GED, and the fact that he
has done some good things in prison to help others. The [c]ourt,
however, cannot overlook his prison record and his misconducts,
transfers and disciplinary problems that he has caused or been
involved in in prison, as well as the fact that within the prison
system, he was convicted of assault and related offenses in 2014,
although not in the legal system. He does have a conviction from
2005, however, for having a weapon or implements, for which he
received one to two years.
The [c]ourt would note that the impact on the victim in this case
cannot be diminished or understated. Obviously, the victim
suffered the ultimate consequence. He was killed, and therefore,
not only does he have no further life, but his family members did
not have [an] opportunity to have a life with him, and by all
accounts, he had accomplished a great deal over a number of
handicaps, and being a fruitful and good citizen in the community,
who was working to serve the community and better himself.
And he was, in fact, helpless based on his physical disabilities, so
the killing certainly is considered by the community, to be
outrageous and something that no civilized society should
tolerate.
Id. at *19-20 (quoting N.T. Resentencing Hearing at 62-64).
In determining that the court did not abuse its discretion in fashioning
Noble’s sentence, we stressed that the court’s statement in sentencing showed
it “considered all required factors under [42 Pa.C.S. §] 9721(b) in imposing
its sentence, including Noble’s rehabilitative needs based on his positive
achievements in prison as well as his record of misconducts and other
violations.” Id. at *21. Notably, Noble argued on direct appeal “that the
information the trial court relied on regarding his misconducts and disciplinary
record while incarcerated was inaccurate[,]” id. at *22, and “that the
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documentation the Commonwealth submitted to the trial court prior to
sentencing did not accurately set forth his record of misconducts while in
prison[,]” id. at *23. In rejecting this argument, we stressed that “Noble
admitted at sentencing and in his pro se post-sentence motion that he earned
numerous misconducts and violations during his incarceration and has spent
much of his incarceration in restrictive housing as a result.” Id. Additionally,
we recognized that
[t]he trial court in this case presided over Noble’s pre-trial, trial
and sentencing proceedings in 1992 and 1993 and was familiar
with the history of the case. Prior to the resentencing hearing,
the trial court reviewed the pre-sentence investigation report, the
mitigation report, letters submitted on behalf of Noble, victim
impact statements and the sentencing memorandums from the
Commonwealth and the defense. [The court also heard] …
testimony at the sentencing hearing from character witnesses for
Noble, Noble himself, Niles and Scott Cleaver….
Id. at *19. We also observed that “[t]he sentence renders Noble eligible for
parole when he is approximately 56 years old, granting him a meaningful
opportunity to live a portion of his life outside of prison.” Id. at *21.
Given the entirety of the evidence before the trial court, and our in-
depth analysis of the court’s sentencing decision on direct appeal, we conclude
that Noble’s second through eighth claims of Barbato’s ineffectiveness do not
demonstrate that Noble’s sentence would have been different but for counsel’s
alleged misconduct. The record shows that Barbato presented reasonable
arguments, character witnesses, and other mitigating evidence on Noble’s
behalf. The fact that Barbato may have been addicted to drugs and alcohol,
and committing offenses against clients in other, unrelated cases, does not
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automatically establish that he acted ineffectively in Noble’s case. Instead,
Noble must show that Barbato’s drug and alcohol addictions, and/or his legal
issues, negatively affected his representation of Noble in this case. See
Commonwealth v. Burton, 417 A.2d 611, 614–615 (Pa. 1980) (finding that
counsel’s alleged inebriation during trial did not constitute ineffectiveness
where there was no indication on record that counsel’s drinking had affected
the quality of his representation); Commonwealth v. McCloy, 574 A.2d 86,
90-91 (Pa. Super. 1990) (holding “that where … defense counsel’s personal,
legal troubles are unrelated to those of the client whom he is representing,
there is no per se rule which commands that counsel be deemed
constitutionally ineffective[;]” instead, “the defendant must affirmatively
show that his right to a fair trial was prejudiced by his counsel’s
representation”). Noble has failed to meet this burden.
For instance, Noble does not state what mitigating evidence Barbato
and/or Niles should have presented, or what further investigation would have
uncovered that could have impacted the court’s sentencing decision. He also
does not explain how Barbato’s purported failures to communicate with him
or turn over certain documents to Noble impacted the outcome of his
resentencing hearing. Moreover, we discern nothing unreasonable about
Barbato’s acknowledging Noble’s guilt and asking the court to impose a
sentence of 20 to 60 years’ imprisonment. Noble had been found guilty by
the jury at that point, and his sentencing request of time served was not only
highly unlikely, but was made clear to the court by Noble himself.
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In regard to Noble’s lengthy discussion of the ostensible inaccuracies in
the Commonwealth’s recitation of his prison record, it appears that Noble is
not disputing that many of the misconducts/violations actually occurred but,
instead, he is attacking the specific details and significance of those incidents.
Moreover, as we noted on direct appeal, Noble admitted at the resentencing
hearing that he had “some altercations, some violent altercations” while
incarcerated. N.T. Resentencing Hearing at 38. He also stated in his 2019,
pro se post-sentence motion that he “experienced long-term solitary
confinement involuntarily from 2006 to 2013 and 2014 to present[,]” Motion
for Reconsideration of Sentence, 5/7/19, at 9; he had three misconducts for
assault while incarcerated, id. at 11; and he was placed in restricted housing
four times for misconducts including assault with a weapon on his cellmate,
failure to obey orders, and “false/retaliatory misconduct,” id. at 13, 14, 17.
Given that Noble admits he committed various infractions and offenses while
incarcerated, he has failed to demonstrate that, even had Barbato corrected
the alleged inconsistencies in the specifics of his prison record, the court’s
sentencing decision would have been different. This is especially true where
the court had ample other evidence and considerations that it took into
account in fashioning Noble’s sentence, as detailed supra. Therefore, no relief
is due on Noble’s second through eighth ineffectiveness claims.
In Noble’s ninth claim on appeal, he simply states that “[t]he court
abused [its] discretion by not addressing each PCRA issue listed in [the] PCRA
petition, page 4, Section 6(c) 4 to 4 c-4.” Noble’s Brief at 47. We cannot
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even discern to what section of Noble’s 75-page, handwritten petition he is
referring. While Noble also cites an “Exhibit EEE” purportedly submitted to
this Court, that is not helpful, given that Noble filed hundreds of pages of
exhibits that are numbered and lettered in a confusing fashion. Id. We will
not scour the record to flesh out Noble’s vague claim that the court failed to
consider unidentified issues. See Commonwealth v. Hardy, 918 A.2d 766,
771 (Pa. Super. 2007) (“When briefing the various issues that have been
preserved, it is an appellant’s duty to present arguments that are sufficiently
developed for our review.”). Thus, no relief is due on Noble’s ninth issue.
In Noble’s tenth claim, he briefly asserts that the PCRA court “abused
its discretion by ignoring … Barbato’s saying[, in his own criminal prosecution,
that] his alcohol, marijuana, and cocaine addiction contributed to his
neglect/sabotage [of] his clients’ cases from 2014 to 2020….” Noble’s Brief at
47-48. Again, Barbato’s drug and alcohol issues and conduct in other,
unrelated cases does not constitute per se ineffectiveness, and Noble must
demonstrate that Barbato acted ineffectively in this case to be entitled to
relief. Thus, the court did not abuse its discretion by not finding Barbato
ineffective simply based on his purported admission of misconduct in
unnamed, and unrelated, other cases.
Next, Noble contends that Barbato was ineffective for not objecting to
purported inaccuracies in the transcript of the resentencing hearing.
Specifically, Noble lists numerous portions of his testimony to the resentencing
court that he claims were transcribed erroneously. See id. at 48-54. Noble
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raised a similar claim in his first direct appeal from his resentencing (in which
we remanded for Noble to file a post-sentence motion). See Noble, No. 420
WDA 2018, unpublished memorandum at *20-22. Specifically, Noble
challenged the trial court’s denial of a “Correction Motion” that he had filed,
which outlined the alleged inaccuracies in the transcription of the resentencing
hearing. In rejecting Noble’s claim, we explained:
In the current appeal, after the official court reporter certified, “I
hereby certify that the proceedings and evidence are contained
fully and accurately, to the best of my ability, in the notes taken
by me on the trial of the above cause, and that this copy is a
correct transcript of the same[,]” N.T. [Resentencing Hearing] …
at 66, the [resentencing court] further certified that he “approved”
the notes of testimony. Id. The [resentencing] court included
similar language in its order denying [Noble’s] Correction Motion:
“Both the Court Stenographer and the [c]ourt have certified the
record to be accurate and there is no other record or recording of
the proceeding.” Order, 8/28/2018. The … court also explained:
[I]t appears … [Noble] may have planned to say certain
things that he had written down[,] but actually said what
was in fact recorded. In any event, even taking all that he
claims to have said as accurate, nothing either standing
alone or taken together, is of such substance or import as
to have resulted in an error which is other than harmless.
Trial Court Memorandum Opinion, [11/8/18, at 1 (single page)].
We accept the representations of the court reporter and of the
resentencing judge as to the accuracy and completeness of the
notes of testimony from the resentencing hearing, and, as any
questions as to the correctness of the notes of testimony are
properly decided by the trial court, Pa.R.A.P. 1922(a), 1926(a);
[Commonwealth v.] Szakal, 50 A.3d [210,] 217 [(Pa. Super.
2012)], we defer to the trial court’s determinations about the
notes of testimony from [Noble’s] resentencing hearing. [Noble]
hence merits no relief on this thirteenth issue….
Id. at *21-22.
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Given our conclusion that the notes of testimony were accurate and
complete, Barbato would have had no reason to object to the purported
transcription errors listed by Appellant. Additionally, accepting the
resentencing court’s decision that the alleged inaccuracies, even if true, were
harmless error, Noble clearly was not prejudiced by Barbato’s ostensible
ineffectiveness. Thus, no relief is due.
In Noble’s twelfth through fifteenth issues, he contends that the PCRA
court erred by not finding he was entitled to post-conviction relief based on
alleged errors by the trial and resentencing courts. Namely, Noble claims the
resentencing court erred by not permitting him to raise issues challenging his
conviction. See Noble’s Brief at 54-55. He also insists that the trial court
“abused [its] discretion by not granting demurrer to all charges” where the
evidence was insufficient, id. at 55; the trial court “abused [its] discretion by
restricting [Noble’s] trial attorney … [from] cross-examination of [a certain]
prosecution witness[,]” id.; and the trial court erred by refusing to remove
certain jurors “with disqualifying views” that demonstrated they could not be
fair and impartial, id. at 56.
Each of Noble’s claims challenging the trial and/or resentencing court’s
actions could have been raised on direct appeal from his conviction and/or
resentencing hearing. Accordingly, they are waived. See 42 Pa.C.S. §
9543(a)(3) (stating that, to be eligible for PCRA relief, the petitioner must
prove “[t]hat the allegation of error has not been previously litigated or
waived”); 42 Pa.C.S. § 9544(b) (declaring that “an issue is waived if the
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petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction proceeding”).
In sum, we conclude that the PCRA court did not err in denying Noble’s
various claims, as none warrant relief. Thus, we affirm.
Order affirmed.
DATE: 10/01/2024
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