Com. v. Giddings, G. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY GIDDINGS :
:
Appellant : No. 1680 EDA 2020
Appeal from the PCRA Order Entered August 25, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0015079-2012
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED JULY 2, 2021
Appellant Gregory Giddings appeals from the order denying, without an
evidentiary hearing, his timely first Post-Conviction Relief Act1 (PCRA) petition.
Appellant contends that all prior counsel were ineffective for failing to raise
and preserve a weight of the evidence claim. We affirm.
We briefly summarize the relevant facts and procedural history of this
case. On March 28, 2012, Appellant shot and killed Clinton Brunson in
Philadelphia during the course of a robbery and burglary. PCRA Ct. Op.,
10/14/20, at 1. On September 19, 2014, a jury convicted Appellant of second-
degree murder, robbery, burglary, conspiracy to commit robbery, conspiracy
to commit burglary, carrying a firearm without a license, and carrying a
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1 42 Pa.C.S. §§ 9541-9546.
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firearm in public in Philadelphia.2 Verdict, 9/19/14. The trial court sentenced
Appellant to life imprisonment without parole for the second-degree murder
charge and imposed no further penalties for the remaining convictions. N.T.
Sentencing Hr’g, 1/21/15, at 20.
On February 6, 2015, Appellant, while still represented by trial counsel,
W. Fred Harrison, Esq., filed a pro se notice of appeal.3 On February 20, 2015,
trial counsel, W. Fred Harrison, Esq., filed a post-sentence motion nunc pro
tunc challenging, inter alia, the sufficiency and weight of the evidence.
Appellant’s Post-Sentence Mot., 2/20/15. The trial court did not rule on the
motion, and Appellant did not file a counseled notice of appeal.
On June 22, 2015, Appellant timely filed a pro se PCRA petition and an
amended petition on September 3, 2015. PCRA Pet., 6/22/15; Am. PCRA Pet.,
9/3/15. The PCRA court ultimately appointed David Rudenstein, Esq., as PCRA
counsel. On May 22, 2016, Appellant timely filed a counseled amended PCRA
petition alleging that trial counsel was ineffective by not filing a requested
notice of appeal. Am. PCRA Pet., 5/22/16, at 2. The amended PCRA petition
only requested restoration of his appellate rights nunc pro tunc and did not
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2 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), 3502(a), 903, 6106(a)(1), and 6108,
respectively.
3 A breakdown in the operation of the trial court occurred because the trial
court was obligated to forward Appellant’s pro se notice of appeal to this Court
even though he was represented by counsel. See Commonwealth v.
Williams, 151 A.3d 621, 624 (Pa. Super. 2016). Because Appellant’s direct
appeal rights were subsequently restored nunc pro tunc, we need not address
the trial court’s error.
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request restoration of Appellant’s right to file a post-sentence motion nunc pro
tunc.
On October 13, 2016, the PCRA court reinstated Appellant’s appellate
rights nunc pro tunc.4 Order, 10/13/16. Appellant timely appealed,
challenging the sufficiency and weight of the evidence. On March 22, 2017,
the trial court filed a responsive Pa.R.A.P. 1925(a) opinion, which addressed
the weight claim as follows:
The jury’s verdict in this case signifies that it believed the
overwhelming direct and circumstantial evidence which proved
beyond a reasonable doubt that [Appellant] shot and killed the
decedent while he was engaged in the commission of an armed
robbery. The mere conflict in the testimony as to whether
[Appellant] aimed to shoot at the tires of the vehicle to avoid being
hit or at the decedent is irrelevant to that determination. It is
evident that the jury verdict is not so contrary to the evidence as
to shock one’s sense of justice, and therefore, the verdict was not
against the weight of the evidence.
Trial Ct. Op., 3/22/17, at 14.
On January 3, 2018, this Court affirmed the trial court’s judgment of
sentence. Commonwealth v. Giddings, 3493 EDA 2016, 2018 WL 267731,
at *1 (Pa. Super. filed Jan. 3, 2018) (unpublished mem.), appeal denied, 186
A.3d 373 (Pa. 2018). Of relevance to this appeal, we held that Appellant
waived his weight of the evidence claim because it was not raised “at any time
during trial or by filing a post-sentence motion pursuant to Pa.R.Crim.P.
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4 The order was not transmitted to this Court as part of the certified record,
although it is reflected in the docket.
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720(a).” Id. at *2. Moreover, “[Appellant] did not seek reinstatement of his
post-sentence motion rights in either his pro se petition or his counseled
petition.” Id. (footnote omitted). Regardless, we addressed the weight claim
on the merits, and held that the trial court did not abuse its discretion.5 Id.
at *2 n.4. Appellant filed a petition for allowance of appeal, which our
Supreme Court denied on May 24, 2018.
On February 26, 2019, Appellant timely filed his first6 pro se PCRA
petition, and the PCRA court appointed Gina Amoriello, Esq., as PCRA counsel.
PCRA Pet., 2/26/19; Order, 7/19/19. On October 10, 2019, Attorney
Amoriello filed an amended PCRA petition, asserting that Attorneys Harrison
and Rudenstein were ineffective by “failing to preserve the weight of the
evidence claim in either timely and/or nunc pro tunc post-sentence motions .
. . .”7 Am. PCRA Pet., 10/10/19, at ¶ 13.
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5 We note the trial court did not hold that Appellant waived his weight claim.
Trial Ct. Op., 3/22/17, at 12.
6 A PCRA petition filed after an appellant’s direct appeal rights have been
reinstated nunc pro tunc is considered a first PCRA petition for timeliness
purposes. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super.
2013) (explaining “when a PCRA petitioner’s direct appeal rights are reinstated
nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be
considered a first PCRA petition for timeliness purposes” (citations and
footnote omitted)).
7 This was the first opportunity for Appellant to allege Attorney Rudenstein’s
ineffectiveness. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc) (holding that claims of ineffective assistance of original-
jurisdiction post-conviction counsel cannot be raised for the first time on
appeal).
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On July 22, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s PCRA petition without a hearing.8 Rule 907
Notice, 7/22/20. Appellant filed a response on August 10, 2020, and on
August 25, 2020, the PCRA court denied Appellant’s PCRA petition. Appellant
timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. On
October 14, 2020, the PCRA court filed a responsive opinion.9
On appeal in the instant matter, Appellant raises the following issue:
The [PCRA] court erred in denying this timely PCRA petition
without [an evidentiary] hearing when prior counsel clearly
rendered ineffective assistance by failing to preserve the weight
of the evidence claim in either timely and/or nunc pro tunc post-
sentence motions, when said claim had arguable merit given the
conflicting testimony presented at trial.
Appellant’s Brief at 4 (formatting altered).
Appellant asserts that Attorney Harrison was ineffective by filing an
untimely post-sentence motion nunc pro tunc challenging the verdict as
against the weight of the evidence. Id. at 5, 7-9. Additionally, Appellant
contends that Attorney Rudenstein was ineffective by failing to preserve this
allegedly meritorious weight of the evidence claim in a post-sentence motion
prior to filing a notice of appeal. Id. at 7 (“Prior counsel had Appellant’s direct
appeal rights reinstated then failed to properly preserve the weight of the
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8 The PCRA court’s Rule 907 notice listed several generic reasons for
dismissing a PCRA petition. See Rule 907 Notice. It appears, because the
phrase is in bold font, that the PCRA court indicated that it was dismissing
Appellant’s counseled petition because the issue lacked merit. See id.
9 The PCRA court judge was the same judge who presided over Appellant’s
trial.
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evidence claim by not challenging [the] same in post-sentence motions”).
Appellant asserts that
[t]here was clearly conflicting evidence at trial, as there was
testimony that the decedent was killed by shots fired by Appellant
at a vehicle which was trying to “run him over” as well as
testimony from ballistic experts that projectiles from two[]
different weapons were found in the vicinity of the shooting.
Id. at 9. As a result of prior counsels’ inaction, Appellant contends that
“counsel could have had no basis to [not] challenge the weight of the evidence
claim,” and was “prejudiced by [the] same.” Id. at 5, 9. Additionally,
Appellant argues that the PCRA court erred by declining to hold an evidentiary
hearing. Id. at 7.
The Commonwealth responds that while “[Appellant] has identified a
conflict in the evidence, and although the Commonwealth acknowledges the
expert ballistic testimony is important, this does not rise to the level of
shocking one’s sense of justice.” Commonwealth’s Brief at 16. Further, the
Commonwealth references the trial court’s March 22, 2017 opinion resolving
the merits of Appellant’s weight claim and argues that Appellant’s layered
ineffective assistance of counsel claim must fail because “[Appellant] could
not have obtained a new trial with a timely weight-of-the-evidence claim [filed
by Attorney Harrison].” Id. at 15, 17. The Commonwealth argues that
“because [Appellant] does not raise any issues of disputed fact and because
his claim of ineffective assistance of counsel claim fails on the prejudice prong,
no evidentiary hearing is necessary.” Id. at 17.
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In reviewing Appellant’s PCRA claims, we are guided by the following
principles:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. 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.
Furthermore, 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
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. 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.
We have explained that a claim has arguable merit where the
factual averments, if accurate, could establish cause for relief.
Whether the facts rise to the level of arguable merit is a legal
determination.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would have
chosen that action or inaction, or, the alternative, not chosen,
offered a significantly greater potential chance of success.
Counsel’s decisions will be considered reasonable if they
effectuated his client’s interests. We do not employ a hindsight
analysis in comparing trial counsel’s actions with other efforts he
may have taken.
Prejudice is established if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis
and/or ensuing prejudice cannot satisfy a petitioner’s burden to
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prove that counsel was ineffective. Moreover, a failure to satisfy
any prong of the ineffectiveness test requires rejection of the
claim of ineffectiveness.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)
(citations omitted and formatting altered), appeal denied, 216 A.3d 1029 (Pa.
2019).
Further, to establish a layered ineffective assistance of counsel claim,
“the critical inquiry is whether the first attorney that the defendant 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) (citation and quotation marks omitted).
Moreover, it is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not
necessary. To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
After reviewing the record, the parties’ briefs, and the PCRA court’s
opinion, we agree with the PCRA court that Appellant is due no relief. Although
Appellant contends that he was unable to raise the weight of the evidence
claim due to the ineffectiveness of prior counsel, and thus was prejudiced by
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the same, the trial court explicitly denied relief on the merits of Appellant’s
weight claim in March 2017. See Trial Ct. Op., 3/22/17, at 14. Moreover,
because a prior panel of this Court addressed the weight claim on the merits
and concluded that the trial court did not abuse its discretion in denying relief
on that claim, see Giddings, 2018 WL 267731, at *2 n.4, Appellant cannot
establish he was prejudiced as a matter of law. See Commonwealth v.
Reed, 971 A.2d 1216, 1220 (Pa. 2009) (affirming denial of PCRA claim that
trial counsel was ineffective because this Court previously held that the
underlying issue was meritless on direct appeal). Accordingly, we discern no
basis to conclude that Appellant was prejudiced by trial counsel’s (Attorney
Harrison’s) failure to file a timely post-sentence motion challenging the weight
of the evidence because there is no reasonable probability that the outcome
of the proceedings would have been different. See Sandusky, 203 A.3d at
1043-44. Further, because trial counsel was not ineffective, Appellant’s
layered claim of ineffectiveness concerning prior PCRA counsel (Attorney
Rudenstein) must fail. See Rykard, 55 A.3d at 1190. It follows that the
PCRA court did not abuse its discretion by not holding an evidentiary hearing.
See Maddrey, 205 A.3d at 328.
For the foregoing reasons, we conclude that Appellant’s claim of
ineffective assistance of counsel merits no relief. Therefore, we affirm the
PCRA court’s order dismissing Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2021
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