Com. v. Campbell, S. ( 2021 )

J-S21010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN CAMPBELL :
:
Appellant : No. 1323 EDA 2020
Appeal from the PCRA Order Entered March 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006498-2017,
CP-51-CR-0006499-2017, CP-51-CR-0008808-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN CAMPBELL :
:
Appellant : No. 1324 EDA 2020
Appeal from the PCRA Order Entered March 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006498-2017,
CP-51-CR-0006499-2017, CP-51-CR-0008808-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN CAMPBELL :
:
Appellant : No. 1325 EDA 2020
Appeal from the PCRA Order Entered March 6, 2020
J-S21010-21
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006498-2017,
CP-51-CR-0006499-2017, CP-51-CR-0008808-2017
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: Filed: August 12, 2021
In these consolidated appeals, Appellant challenges the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We
affirm.
Appellant committed a series of armed robberies, was caught with the
gun and proceeds from the robberies after a victim utilized the Find My iPhone
application, and was identified by one of the victims. Appellant was charged
with a bevvy of crimes at the above docket numbers. After he unsuccessfully
litigated a suppression motion in which he sought to suppress both the
physical evidence obtained by the police and a statement he gave following
his arrest, Appellant ultimately entered a negotiated guilty plea.
In exchange for guilty pleas to five counts of robbery and one count of
receipt of stolen property, the Commonwealth agreed to concurrent five-to-
twenty-year terms of imprisonment plus four years of probation and the
dismissal of the remaining charges, which included firearms violations,
assault, and terroristic threats. The trial court accepted the plea and
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* Retired Senior Judge assigned to the Superior Court.
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sentenced Appellant according to the agreement. Appellant filed no post-
sentence motion or direct appeal.
Appellant filed a timely pro se PCRA petition at all three docket numbers
challenging the performance of plea counsel during the pretrial proceedings
and in advising him to plead guilty. Counsel was appointed and, rather than
amending Appellant’s PCRA petition, he filed a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued
notice of its intent to dismiss Appellant’s petition without a hearing in
accordance with Pa.R.Crim.P. 907, incorporating by reference counsel’s no-
merit letter. Appellant filed a pro se response to the notice. The PCRA court
dismissed Appellant’s petition and granted PCRA counsel’s request to
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withdraw.1 Appellant filed timely pro se notices of appeal,2 and both he and
the PCRA court complied with Pa.R.A.P. 1925.
Proceedings in this Court were delayed by, inter alia, confusion
surrounding Appellant’s representation status, the fact that privately-retained
appellate counsel filed a brief only at one of this Court’s docket numbers before
his application for consolidation was granted, and the Commonwealth’s receipt
of multiple extensions of time to file a brief. Those issues have now been
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1 Neither the Pa.R.Crim.P. 907 notice nor the order dismissing the petition
certified that the PCRA court conducted an independent review of the record
and agreed with counsel that Appellant’s PCRA petition was meritless. See
Commonwealth v. Glover, 738 A.2d 460, 466 (Pa.Super. 1999) (“When . . .
the PCRA judge affirms by adopting counsel’s ‘no merit’ letter, the certified
record fails to demonstrate that the PCRA Court has conducted a meaningful
independent review of the issues as required under Turner [and Finley].”).
However, the PCRA court did author a Pa.R.A.P. 1925(a) opinion offering this
Court a substantive explanation of its reasoning. Compare Commonwealth
v. Rykard, 55 A.3d 1177, 1186 (Pa.Super. 2012) (explaining that Glover is
not implicated where the PCRA court authors a substantive Rule 1925
opinion). In any event, Appellant, who is represented by counsel on appeal,
does not challenge the propriety of the PCRA court’s procedure in permitting
counsel to withdraw.
2 The order dismissing Appellant’s petition is dated March 6, 2020, and also
listed on the dockets of each case as filed on that date. However, none of the
three impacted case dockets reflects proper entry of the order pursuant to
Pa.R.Crim.P. 114(C)(2) through the notation of the date of service of the
order. Consequently, the thirty-day appeal period has yet to commence.
Rather than quash these appeals as interlocutory, we exercise our discretion
to treat as done that which ought to have been done and proceed to address
the appeals. See, e.g., Commonwealth v. Carter, 122 A.3d 388, 391
(Pa.Super. 2015) (opting to treat notices of appeal as timely filed although
the appeal period had not started running because the clerk of courts did not
note service on the docket).
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sorted out and briefs filed by both parties, such that the appeals are ripe for
disposition.
As to all three appeals, Appellant presents the following question for our
review:
The [PCRA] court should have allowed [A]ppellant to present
evidence in support of his claim that his guilty plea was induced
improperly because of the existence of constitutionally infirm
evidence in the form of a videotape confession regarding a weapon
that was used to connect [A]ppellant to several robberies, trial
counsel’s failure to move to suppress the evidence and because
counsel was ineffective for advising [A]ppellant to enter a plea of
guilty rather than stand trial.
Appellant’s brief at 2.
We begin with a review of the pertinent legal principles. “The standard
of review of an order dismissing a PCRA petition is whether that determination
is supported by the evidence of record and is free of legal error.”
Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (cleaned up).
“[A] PCRA court has discretion to dismiss a PCRA petition without a hearing if
the court is satisfied that there are no genuine issues concerning any material
fact; that the defendant is not entitled to post-conviction collateral relief; and
that no legitimate purpose would be served by further proceedings.”
Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa.Super. 2019) (internal
quotation marks omitted). Additionally, “[i]t is an appellant’s burden to
persuade us that the PCRA court erred and that relief is due.”
Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(internal quotation marks omitted).
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Appellant’s claims challenge the performance of plea counsel.
Accordingly, we observe that counsel is presumed to be effective, and a PCRA
petitioner bears the burden of proving otherwise. Commonwealth v.
Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must
plead and prove: “(1) the underlying legal claim is of arguable merit; (2)
counsel’s action or inaction lacked any objectively reasonable basis designed
to effectuate his client’s interest; and (3) prejudice, to the effect that there
was a reasonable probability of a different outcome at trial if not for counsel’s
error.” Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020)
(internal quotation marks omitted). “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness.” Id. at
15 (cleaned up). Further, “[i]n the context of a plea, a claim of ineffectiveness
may provide relief only if the alleged ineffectiveness caused an involuntary or
unknowing plea.” Commonwealth v. Orlando, 156 A.3d 1274, 1281
(Pa.Super. 2017).
Appellant’s arguments in this Court center around a “15 second video
[which] depicts appellant sitting in his car and says to his cousin, Darrin
Romero, Jr. ‘Get in the car, the gun is at my mom's house.’” Appellant’s brief
at 7. The video, which had been filmed in the same car from which the gun
was later seized pursuant to a warrant, was not produced along with the rest
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of the Commonwealth’s discovery.3 Appellant contends that counsel rendered
ineffective assistance in recommending that Appellant plead guilty because of
the existence of this video, instead of seeking to suppress the video “as a
product of illegally seized evidence and in violation of Brady v. Maryland,
373 U.S. 83 (1963), when the District Attorney’s Office withheld exculpatory
evidence from appellant until the eve of trial.” Appellant’s brief at 14.
Appellant argues that “[d]ue to this last-minute disclosure of the videotape
within days of [his] trial, and that the guilty plea was motivated by the
videotape confession, he was advised incompetently by counsel to enter a plea
of guilty and his plea was therefore, not tendered knowingly.” Id. at 15.
For many reasons, Appellant is entitled to no relief. First, as the
Commonwealth duly notes, Appellant never raised this issue prior to appeal.
See Commonwealth’s brief at 9. Appellant’s PCRA petition merely contains
general complaints that counsel did not prevail in litigating the suppression
motion and incompetently advised him to plead guilty. See PCRA Petition,
9/30/19, at 4, 8. In response to the PCRA court’s Rule 907 notice, Appellant
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3 Appellant indicates that “[t]rial counsel may have been notified by the
Philadelphia District Attorney’s Office about the videotape at a later date, but
was not given a description about what was said or done on the videotape.”
Appellant’s brief at 13. It appears that Appellant is conceding that the
Commonwealth identified the existence of the video at an earlier date, but is
arguing that it did not produce it or detail its contents until the eleventh hour.
Indeed, Appellant acknowledges elsewhere in his brief that nearly one year
before his guilty plea, trial counsel informed him that the Commonwealth had
indicated that “they had a gun video.” Id. at 7.
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in more detail complained that, “all evidence seized in [the] present case is in
violation of [his] 4th Amendment rights,” and that “the existence of such
evidence was the primary reason that [he] plead guilty.” Response to Rule
907 Notice, 1/6/20, at 5.
Specifically, Appellant says his “plea of guilty should be invalidated
because it was primarily induced or motivated by” the “oral statement given
by [Appellant] to the police under coercive circumstances and in [the] absence
of complete warnings required by [Miranda v. Arizona, 384 U.S. 436(1966)], as well as a gun seized in an unlawful search.” Id. at 8. Appellant
asserted that he “can prove that his guilty plea was primarily motivated by his
statement to police,” and counsel’s failure to challenge its admissibility. Id.
The only apparent reference to his cousin’s video is the following: “Because if
[the] motion to suppress [had been] properly granted, the only evidence
admissible against [Appellant] would have been his video taped statement.”
Id.
Hence, Appellant did not present the claim to the PCRA court which
forms the basis of the argument that the PCRA court erred in dismissing his
petition without a hearing. See Pa.R.A.P. 302(a) (“Issues not raised in the
trial court are waived and cannot be raised for the first time on appeal.”).
See also Commonwealth v. Roney, 79 A.3d 595, 612 (2013) (holding
Brady claim raised for first time on appeal from denial of PCRA petition was
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waived); Commonwealth v. Mikell, 968 A.2d 779, 782 (Pa.Super. 2009)
(same as to claim of ineffective assistance of trial counsel).
Second, Appellant’s argument does not make much sense. On the one
hand, he asserts that counsel rendered a constitutionally deficient
performance in not taking steps to ensure that the video taken by his cousin
would not be admissible at trial. However, he also proclaims that the
Commonwealth committed a Brady violation by not disclosing it to him
earlier. Our Supreme Court has explained that “there are three necessary
components that demonstrate a violation of the Brady strictures: the
evidence was favorable to the accused, either because it is exculpatory or
because it impeaches; the evidence was suppressed by the prosecution, either
willfully or inadvertently; and prejudice ensued.” Commonwealth v.
Lambert, 884 A.2d 848, 854 (Pa. 2005) (cleaned up). Appellant’s position
that the video was harmful and should have been excluded from evidence is
completely contrary to his simultaneous contention that the video was
favorable to him. Furthermore, the Commonwealth did not withhold it from
Appellant. As the Commonwealth observes, the untimely production of the
evidence does not amount to suppression within the meaning of Brady, and
at most would have warranted a continuance. See Commonwealth’s brief at
10-12. See also Commonwealth v. Murphy, 425 A.2d 352, 356 (Pa. 1981)
(holding there was no Brady or other due process violation where the
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defendant was given the information during trial and the late disclosure had
no adverse effect on the defense).
Finally, Appellant acknowledges that trial counsel played the video for
him at the prison before he decided to plead guilty. See Appellant’s brief at
8. Thereafter, Appellant proceeded to execute both written and oral plea
colloquies during which he indicated that trial counsel had communicated with
him about the defense and plea negotiations, that he was willing to give up
his right to seek suppression of the Commonwealth’s evidence and to have a
jury trial, that he was not forced to plead guilty, and that he was satisfied with
his lawyer’s service and advice. See Written Plea Colloquy, 12/3/18, at 1-3.
See also PCRA Court Opinion, at 9-10 (citing N.T. Guilty Plea, 12/3/18, at 7-
9). Appellant does not argue that he discovered anything new between then
and now that made him realize that counsel had given him deficient advice.
Rather, he seeks to invalidate his plea by contradicting the statements he
made under oath at the time it was entered. This he may not do. See
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011) (“A
person who elects to plead guilty is bound by the statements he makes in
open court while under oath and may not later assert grounds for withdrawing
the plea which contradict the statements he made at his plea colloquy.”
(cleaned up)). See also Commonwealth v. Pier, 182 A.3d 476, 480
(Pa.Super. 2018) (holding PCRA petitioner could not challenge the
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voluntariness of his plea due to ineffective assistance of counsel by claiming
that he lied under oath during his plea colloquy).
For any and all of the above reasons, Appellant has failed to convince
us that the PCRA court erred in dismissing his PCRA petition without a hearing.
Accordingly, we affirm the PCRA court’s March 6, 2020 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/21
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