Com. v. Hall, G. ( 2021 )

J-A14012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY ALLEN HALL :
:
Appellant : No. 894 WDA 2020
Appeal from the PCRA Order Entered July 16, 2020
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001195-2016
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: JUNE 25, 2021
Gary Allen Hall (Appellant) appeals pro se from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-46. We affirm.
On May 10, 2017, a jury convicted Appellant of two counts of possessing
a controlled substance with the intent to deliver (PWID) (cocaine and heroin),
and one count each of possession of cocaine, possession of heroin, and
possession of drug paraphernalia. 35 P.S. §§ 780-113(a)(30), (a)(16),
and (a)(32). On June 21, 2017, the trial court sentenced Appellant to an
aggregate 87 to 300 months in prison. Appellant filed a direct appeal. In
affirming the trial court, this Court recited the underlying facts:
In May 2015, Agent David Sedon of the Pennsylvania Board of
Probation and Parole received a tip from a former parolee that
Louis Vearnon was residing with Hall at 2011 Main Street in
Aliquippa. Vearnon was the subject of multiple outstanding arrest
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warrants. [Appellant] rented a one-bedroom apartment at 2011
Main Street.
Agent Sedon contacted Agent Daniel Opsatnik of the Pennsylvania
Attorney General’s Office, and Agent Opsatnik went to the
residence and observed Vearnon leave the property and reenter.
Agents Opsatnik and Sedon received backup from Aliquippa police
officers and Probation and Parole agents. The team formed a
perimeter around the building, and police knocked on the door.
They could hear voices and the sounds of people moving around
inside. No one answered the door until five to six minutes later,
when Vearnon and four other people, one of whom was
[Appellant], appeared in the doorway. Law enforcement escorted
them onto the front lawn and arrested Vearnon.
While outside the apartment, Police Captain Ryan Pudik saw a box
of ammunition on a coffee table inside the apartment. Captain
Pudik identified the ammunition as 5.7 caliber, which he knows to
be “armor defeating.” N.T. Suppression, 2/7/17, at 19. He and
other officers entered the building and conducted a sweep of the
home to make sure that there was nobody hidden inside. Id. at
20; see also 13-14. The sweep “took approximately 30 to 40
seconds” and “began immediately after the occupants exited the
apartment.” Suppression Court Opinion and Order, filed March 9,
2017, at 3. The officers did not look in any small containers. N.T.
Suppression, 2/7/17, at 21-22. During the sweep, Captain Pudik
observed in plain sight in the living room small glassine packets,
or “stamp bags,” and a cutting agent, benzocaine hydrochloride.
Suppression Ct. Op. at 3. He also saw what he believed to be a
bundle of stamp bags in the bedroom.
Based on the items observed in plain sight during the sweep, the
police obtained a search warrant for the apartment. They then
searched the home and recovered roughly 50 grams of cocaine
and more than 20 bricks of heroin. They found the majority of
the drugs in the living room, inside the coffee table and behind a
large couch. The police also recovered the items that Captain
Pudik had seen during the sweep – the 5.7-caliber ammunition,
bottle of benzocaine hydrochloride, and stamp bags – as well as a
large amount of additional evidence – digital scales, several cell
phones, a glass pipe, a counterweight, a bottle of lidocaine, over
$700 cash, a money-counting machine, numerous collectable
coins, gold, and silver. They also found a rent receipt issued to
[Appellant] for 2011 Main Street, as well as numerous other
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documents bearing [Appellant]’s name: a vehicle registration, a
bank statement, a lottery claim form, a check, and a tax
statement. They did not find anything indicating anyone other
than [Appellant] lived in the apartment.
Some of the items police recovered referred to [Appellant]’s other
residence, 217 Highland Avenue, and police obtained a warrant to
search that address. Upon its execution, officers recovered
additional ammunition and heroin.
The trial court denied [Appellant]’s suppression motion and he
proceeded to a jury trial at which the Commonwealth presented
as evidence the items recovered during the search of 2011 Main
Street. However, they did not introduce any items seized from
217 Highland Avenue. See N.T. Trial, 5/8/17, at 74-76, 80-103,
108-09.
After the close of evidence, the court held a charging conference
at which [Appellant] objected to a jury instruction on joint
possession. N.T. Trial, 5/9/17, at 150. [Appellant] argued that
because the Commonwealth did not charge any of the other
individuals present in 2011 Main Street with possession crimes, it
was improper to instruct the jury that it could conclude that
[Appellant] jointly possessed the contraband with another person.
The trial court overruled the objection and gave the instruction.
The jury convicted [Appellant] of the above charges, and the trial
court later sentenced him to a total of 87 to 300 months in prison.
[Appellant] filed a post-sentence motion challenging, among other
things, the weight of the evidence, and it was denied by operation
of law.
Commonwealth v. Hall, 199 A.3d 954, 957–58 (Pa. Super. 2018) (finding
no merit to Appellant’s suppression, sufficiency, weight and jury instruction
issues). This Court affirmed Appellant’s judgment of sentence on November
28, 2018. Appellant sought review with the Pennsylvania Supreme Court,
which denied his petition for allowance of appeal on April 17, 2019.
Commonwealth v. Hall, 206 A.3d 1028 (Pa. 2019) (Table).
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Appellant filed his timely pro se PCRA petition on September 18, 2019;
the next day, the court appointed Sherri Hurst, Esquire to represent Appellant.
On June 8, 2020, Attorney Hurst filed a Turner/Finley1 “no-merit” letter and
petition to withdraw from representation. On June 22, 2020, the PCRA court
entered an order contemporaneously granting counsel’s petition to withdraw,
and issuing notice of its intent to dismiss Appellant’s petition without a hearing
pursuant to Pa.R.Crim.P. 907. The order stated it was being mailed to
Appellant by certified mail, return receipt requested, and Appellant had until
July 15, 2020 to file a response. Order, 6/22/20, at 2. Appellant did not
respond by July 15th, and on July 16, 2020, the PCRA court dismissed the
petition without a hearing, “after conducting an independent review of the
record and concluding [Appellant’s] PCRA petition has no merit, and that no
purpose would be served by proceeding with an evidentiary hearing.” Order,
7/16/20. Appellant filed a notice of appeal.2 Both the PCRA court and
Appellant complied with Pa.R.A.P. 1925.
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 Although Appellant’s pro se notice of appeal was docketed approximately a
week late on August 24, 2020, the Commonwealth does not challenge the
timeliness of the appeal, implicitly agreeing with the PCRA court’s assessment
that the appeal “is timely under the ‘prisoner mailbox rule’” because it was
mailed on August 17, 2020. See PCRA Court Opinion, 9/17/20, at 10 (citing
Commonwealth v. Jones, 700 A.2d 423, 326 (Pa. 2007) (appeal by pro se
prisoner deemed filed on date prisoner deposits it with prison authorities or
places in prison mailbox)); see also Commonwealth Brief at 8.
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Appellant presents two questions for review:
A. WHETHER APPELLANT’S PCRA ATTORNEY SHERRI R. HURST, ESQ
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FILING A
DEFICIENT NO-MERIT [sic] BY FAILING TO ADDRESS ALL
APPELLANT’S ISSUES AND FOR HER FAILURE TO HELP HIM DEVELOP
VIABLE CLAIMS?
B. WHETHER JUDGE KIM TESLA ABUSED HIS DISCRETION BY FAILING
TO GRANT APPELLANT AN ENLARGEMENT OF TIME TO RESPOND TO
THE COURT’S NOTICE OF INTENT TO DISMISS UNDER RULE 907?
Appellant’s Brief at 7, 15.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
In his first issue, Appellant claims his post-conviction counsel, Attorney
Hurst, was ineffective. He asserts Attorney Hurst erred by “failing to help him
develop a claim against his trial attorney, Stephen D. Colafella for his failure
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to move for suppression on grounds of illegal search[.]”3 Appellant’s Brief at
7.
When a petitioner asserts an ineffectiveness claim, he is entitled to relief
if he pleads and proves that prior counsel rendered ineffective assistance of
counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an [ineffectiveness]
claim, a PCRA petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for acting or failing to act; and (3) the petitioner
suffered resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 780 (Pa. Super. 2015) (en banc). “A petitioner must prove all three
factors of the ‘Pierce test,’ or the claim fails.” Id. Put differently, “[t]he
burden of proving ineffectiveness rests with Appellant.” Commonwealth v.
Chmiel, 889 A.2d 501, 540 (Pa. 2005).
However, where an appellant claims ineffective assistance of PCRA
counsel who has filed a Turner/Finley brief and been granted leave to
withdraw from representation by the PCRA court, we must first determine if
we are permitted to reach the claim before we may address it.
Commonwealth v. Rykard, 55 A.3d 1177, 1186 (Pa. Super. 2012). A
petitioner waives the issue of PCRA counsel’s ineffectiveness related
to Turner/Finley requirements if he declines to respond to the PCRA court’s
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3 Contrary to Appellant’s claim, trial counsel sought suppression, although
counsel was unsuccessful and the suppression court’s denial of the motion was
affirmed on appeal. Commonwealth v. Hall, 199 A.3d 954 (Pa. Super.
2018).
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notice of intent to dismiss. Id. (citing Commonwealth v. Pitts, 981 A.2d
875, 880 n.4 (Pa. 2009)). Our Supreme Court explained:
Although [appellant] asserts his PCRA appeal was the first
opportunity he had to challenge PCRA counsel’s stewardship
because he was no longer represented by PCRA counsel, he could
have challenged PCRA counsel’s stewardship after
receiving counsel’s withdrawal letter and the notice of the
PCRA court’s intent to dismiss his petition pursuant to
Pa.R.Crim.P. 907, yet he failed to do so. Thus, the issue of
whether PCRA counsel was ineffective . . . was waived, and the
Superior Court should not have addressed it.
Pitts, 981 A.2d at 880 n.4 (emphasis added).
Appellant in this case, like the appellant in Pitts, did not file a response
to the PCRA court’s Rule 907 notice. The Commonwealth states that
“Appellant never filed any response within the time frame.” Commonwealth
Brief at 20 (footnote omitted). Moreover, the PCRA court explained:
The order [granting counsel’s request to withdraw and issuing
Rule 907 notice of intent to dismiss] was mailed to [Appellant] as
specified by Pa.R.Crim.P. 907(4). . . . The notice of appeal was
the first filing received from [Appellant] since his pro se petition;
the Clerk of Courts’ file does not contain any other submission
from [Appellant], nor was one sent to the [PCRA c]ourt in
chambers.
PCRA Court Opinion, 9/17/20, at 10.
As our review confirms Appellant failed to respond to the PCRA court’s
Rule 907 notice, this issue is waived and we may not address Appellant’s claim
of PCRA counsel’s ineffectiveness further. Pitts, supra.
In his second issue, Appellant asserts the PCRA court “abused its
discretion by denying Appellant an extension of time to respond to his notice
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of intention to dismiss filed pursuant to Pa.R.Crim.P. 907.” Appellant’s Brief
at 15. Appellant states that as a result of Covid-19, “SCI-Albion has been
operating at limited movement” and “inmates are not granted access to the
law library as they once were.” Id. The remainder of Appellant’s argument
reads:
Appellant stated this is his petition for enlargement of time,
but Judge Tesla ignored this issue and issued a dismissal of the
Appellant’s PCRA Petition. Appellant wished to claim Ms. Hurst as
ineffective for the issues set forth herein as that would have been
his first timely chance to do so.
Appellant’s Brief at 16.
This issue is also waived. It is well-settled that issues not raised before
the trial court are waived and cannot be raised for the first time on appeal.
See Pa.R.A.P. 302(a). The Commonwealth agrees with waiver, stating that
Appellant did not raise his enlargement of time issue until he filed his Rule
1925(b) concise statement. Commonwealth Brief at 21. The PCRA court
addresses the crux of the waiver, stating:
The [PCRA c]ourt did not consider the motion for enlargement of
time because it never received the motion. It is [Appellant’s]
responsibility to file a written motion. Here, he did not.
PCRA Court Opinion, 9/17/20, at 11 (citation and footnote omitted).
Again, the record supports the PCRA court’s assessment of the facts and
procedural posture of this case. We further recognize that waiver
notwithstanding, the PCRA court comprehensively addressed the third issue
raised by Appellant in his Rule 1925(b) concise statement, in which Appellant
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asked, “Did not the PCRA court err in granting PCRA counsel’s Finley letter
which failed to comport with legal standards governing withdrawal of
representation in post-conviction proceedings?” Concise Statement of Errors,
9/6/20, at 1. The PCRA court cited the record and pertinent law in addressing
this claim and explaining why it lacked merit. See PCRA Court Opinion,
9/17/20, at 1-14. Although Appellant has not preserved his issues for review,
in the absence of waiver and coherent argument regarding the merits of the
PCRA court’s dismissal, we would adopt the PCRA court’s reasoning as it is
fully supported by the record and pertinent legal authority.
For all of the above reasons, Appellant is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2021
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