Com. v. Harris, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RASHEED HARRIS :
:
Appellant : No. 2093 EDA 2017
Appeal from the PCRA Order May 19, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0506941-2006
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 24, 2021
Appellant, Rasheed Harris, appeals from the order dismissing his timely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. Herein, Appellant raises ten ineffective assistance of counsel
(“IAC”) claims, as well as claims regarding the trial court’s jurisdiction, error
by this Court, and that he is entitled to credit toward his sentence for time he
spent in pre-trial incarceration. With respect to all but three claims, we affirm
the PCRA court’s order denying relief. As to the remaining three claims, those
pertaining to the trial court’s jurisdiction, Appellant’s assertion that his trial
counsel was ineffective for failing to file a requested appeal from the entry of
nolle prosequi, and his time-credit for pretrial incarceration argument, we
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* Former Justice specially assigned to the Superior Court.
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vacate the portion of the PCRA court’s order denying relief on those issues,
and remand for further proceedings.
A full recitation of the facts underpinning Appellant’s 2006 conviction for
third-degree murder1 and carrying a firearm without a license2 are not
necessary for the disposition of this appeal. Briefly, Dwayne Davis knew both
Appellant and the decedent, Anthony Jones. On the evening of October 28,
2003, Davis saw Appellant shoot Jones on a schoolyard playground on West
Venango Street in Philadelphia. Commonwealth v. Harris, No. 3018 EDA
2008, unpublished memorandum at 1-2 (Pa. Super. filed Sept. 5, 2012)
(quoting Trial Court Opinion, 12/22/09, at 4-6)). Appellant subsequently
made inculpatory statements regarding the shooting to Andre Lane and
Artavius Coleman. Id. at 2-3. Lane gave a statement to police indicating
that, a few days after the shooting, he overheard a conversation between
Appellant and a third party in which Appellant incriminated himself as the
shooter. Id. at 2. However, at trial, Lane admitted to knowing Appellant, but
denied having any knowledge about the shooting. Id. Coleman, testifying
pursuant to a plea agreement with federal authorities, stated that he had a
discussion with Appellant in which Appellant admitted his role in the shooting,
and asked Coleman to help him get in touch with Lane for the purposes of
____________________________________________
1 18 Pa.C.S. § 2502(c).
2 18 Pa.C.S. § 6106.
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persuading Lane to recant his statement to police. Id. at 2-3.3 No physical
evidence connected Appellant to the crime. Based on the testimony of these
witnesses, the jury convicted Appellant on January 18, 2008, of third-degree
murder and carrying a firearm without a license.
At a sentencing hearing conducted on April 2, 2008, Appellant appeared
pro se, after relinquishing his right to counsel following a full colloquy by the
trial court. PCRA Court Opinion (“PCO”), 6/28/18, at 1. The trial court
sentenced Appellant to 16-36 years’ incarceration for third-degree murder,
and a consecutive term of 3-6 years’ incarceration for carrying a firearm
without a license, constituting an aggregate sentence of 19-42 years’
incarceration. The trial court denied Appellant’s post-sentence motions, and
he then filed a timely, pro se appeal. Id. at 2.
Appellant was initially appointed counsel for his direct appeal, however,
he was again permitted to proceed pro se after the trial court conducted a
Grazier4 hearing. Id. Subsequently, this Court affirmed his judgment of
sentence. Commonwealth v. Harris, 60 A.3d 843 (Pa. Super. 2012)
(unpublished memorandum).5 Appellant did not seek further review with our
Supreme Court.
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3 See also N.T., 1/16/08, 98-99.
4 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver
of the right to counsel is sought at the post-conviction and appellate stages,
an on-the-record determination should be made that the waiver is a knowing,
intelligent, and voluntary one.”).
5 Appellant’s petition for reargument was denied on October 22, 2012.
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Appellant timely filed the instant PCRA petition on May 6, 2013. The
PCRA court appointed counsel, and again Appellant sought leave to proceed
pro se, which the PCRA court granted after conducting a Grazier hearing.
PCO at 2. Appellant then filed a 235-page, amended PCRA petition on May
20, 2016. The PCRA court issued notice pursuant to Pa.R.Crim.P. 907 of its
intent to dismiss the petition without a hearing, to which Appellant filed a
timely response. The court dismissed the petition on May 19, 2017. Appellant
filed a timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b)
statement.6 The PCRA court issued its Rule 1925(a) opinion on June 28, 2018.
On November 21, 2018, this Court granted Appellant’s “Application For
Relief/Stay Proceedings Seeking to Designate Additional Portions of the
Record to be Transmitted to the Appella[te] Court,” and remanded this matter
to the PCRA court for 30 days.
Appellant now presents the following thirteen issues for our review:
1. The PCRA court erred in denying relief where the [trial
court] did not have subject matter jurisdiction[, as] the
Commonwealth failed to file either a[] [criminal]
information or criminal complaint.
2. The PCRA court erred in denying relief and/or a hearing on
the issue that [Appellant] was denied counsel during a
critical stage of the proceedings….
3. The PCRA court erred in denying relief and/or a hearing on
the issue that trial counsel was ineffective for removing
[Appellant] from a critical stage of the proceedings and not
objecting that no colloquy was given regarding
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6 Appellant’s Rule 1925(b) statement contained 35 issues.
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[Appellant’s] waiving his right to be present at every
critical stage of the trial/proceedings.
4. The PCRA court erred in denying relief and/or a hearing on
the issue that [trial] counsel was ineffective for failing to
move for a mistrial where [Appellant] was denied the right
to a fair and unbiased jury after outside contact [was made
with the jury], and [where] the trial court erred in not
questioning the entire jury [about the outside contact].
5. The PCRA court erred in denying relief and/or a hearing on
the issue where [trial] counsel failed to consult with
[Appellant] about his appeal rights.
6. The PCRA court erred in denying relief and/or a hearing on
the issue that the trial court erred in not informing
[Appellant] about his appeal rights.
7. The PCRA court erred in denying relief and/or a hearing on
the issue that [trial] counsel failed to file an appeal after
[Appellant] requested [one].
8. The PCRA court erred in denying relief and/or a hearing on
the issue that double jeopardy had attached when the first
jury selection was completely sworn and then dismissed[,
and trial] counsel was ineffective for failing to object to the
second trial [on that basis].
9. The PCRA court erred in denying relief and/or a hearing on
the issue that [Appellant] was not given credit for all time
spent in jail prior to [his] sentenc[ing].
10. The PCRA court erred in denying relief and/or a hearing on
the issue that [trial] counsel was ineffective for not moving
to suppress statements [Appellant] made to a federal
informant.
11. The PCRA court erred in denying relief and/or a hearing on
the issue that [trial] counsel was ineffective for failing to
object to procedures utilized by the trial court which denied
him the right to counsel.
12. The PCRA court erred in denying relief and/or a hearing on
the issue that the trial court[,] PCRA court[,] this Court[,
and the District Attorney] obstruct[ed Appellant’s] direct
appeal and PCRA proceedings.
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13. The PCRA court erred in denying relief and/or a hearing on
the issue that [Appellant] had to be physically rearrested
after the [charges were nolle prossed,] and [trial] counsel
was ineffective for not objecting.
Appellant’s Brief at 7-8 (unnumbered pages) (unnecessary capitalization
omitted).
We begin by noting our standard of review:
“Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error.” Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011) (citing Commonwealth v. Colavita, 993 A.2d 874, 886
(Pa. 2010)). We view the findings of the PCRA court and the
evidence of record in a light most favorable to the prevailing party.
Id. With respect to the PCRA court’s decision to deny a request
for an evidentiary hearing, or to hold a limited evidentiary hearing,
such a decision is within the discretion of the PCRA court and will
not be overturned absent an abuse of discretion. See
Commonwealth v. Reid, 99 A.3d 470, 485 (Pa. 2014). “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.”
Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). The
denial of an appellant’s request for discovery is reviewed for abuse
of discretion. Id.To be entitled to PCRA relief, a petitioner bears the burden of
establishing, by a preponderance of the evidence, that his
conviction or sentence resulted from one or more of the
circumstances enumerated in 42 Pa.C.S. § 9543(a)(2), which
include a violation of the Pennsylvania or United States
Constitution or ineffectiveness of counsel, any one of which “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)(i) and (ii). Further, the petitioner must show
that the allegation of error has not been previously litigated or
waived pursuant to 42 Pa.C.S. § 9543(a)(3); See
Commonwealth v. Baumhammers, 92 A.3d 708, 714 (Pa.
2014).
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Commonwealth v. Mason, 130 A.3d 601, 617–18 (Pa. 2015) (citations
reformatted).
I
Appellant first argues that the trial court lacked subject matter
jurisdiction because the Commonwealth failed to file a criminal complaint or
information in this case.
“Issues pertaining to jurisdiction are pure questions of law, and
an appellate court’s scope of review is plenary. Questions of law
are subject to a de novo standard of review.” In re J.A., 107
A.3d 799, 813 n.15 (Pa. Super. 2015) (citation omitted). A
subject matter jurisdiction challenge cannot be waived.
Commonwealth v. Jones, … 929 A.2d 205, 210 ([Pa.] 2007).
“Jurisdiction relates to the court’s power to hear and decide the
controversy presented. All courts of common pleas have
statewide subject matter jurisdiction in cases arising under the
Crimes Code [pursuant to 42 Pa.C.S. § 931].” Commonwealth
v. Gross, … 101 A.3d 28, 32 ([Pa.] 2014) (internal citation,
quotation marks, and alteration omitted). There are two
requirements for subject matter jurisdiction as it relates to
criminal defendants: competency of the court to hear the case,
and formal and specific notice to the defendant. Jones, supra.
Commonwealth v. McGarry, 172 A.3d 60, 65–66 (Pa. Super. 2017).
In support of his claim, Appellant points to the trial court docket, and
correctly notes that it does not contain any entry for the filing of a criminal
complaint or information. Appellant also cites our Supreme Court’s holding
that: “The right to formal notice of charges, guaranteed by the Sixth
Amendment to the Federal Constitution and by Article I, Section 9 of the
Pennsylvania Constitution, is so basic to the fairness of subsequent
proceedings that it cannot be waived even if the defendant voluntarily submits
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to the jurisdiction of the court.” Commonwealth v. Little, 314 A.2d 270,
273 (Pa. 1974), aff’d, 359 A.2d 788 (Pa. 1976).
Unfortunately, the PCRA court did not address this unwaivable claim in
its Rule 1925(a) opinion, despite Appellant’s raising it in his Rule 1925(b)
statement. See Appellant’s Rule 1925(b) Statement, 7/21/17, at 1 ¶ 2. The
Commonwealth contends that
[i]t is beyond dispute that the Commonwealth filed charging
documents. A copy of the criminal complaint, dated on April 25,
2006, and signed by Detective Gerald Lynch, is in an “exhibits”
file for this Court docketed in the Unified Judicial System Web
Portal’s entries for this case (Exhibits, 7/30/18, page 47 of 57). A
copy of the bills of information, approved on May 24, 2006, can
be found in a “trial court record received - sensitive documents”
file for this Court that is also docketed in the Unified Judicial
System Web Portal (Trial Court Record Received – Sensitive
Documents, 7/30/18, pages 38-47 of 49).
Commonwealth’s Brief at 12-13.
We are not convinced that the Commonwealth’s timely filing of charging
documents in this case is “beyond dispute.” Id. at 12. We note that the
Commonwealth does not dispute that the trial court’s docket does not contain
any reference to a criminal complaint or information. This suggests two
possibilities. First, as Appellant claims, that the Commonwealth failed to
timely file charging documents in this case, raising the prospect that Appellant
was denied formal notice of the charges, thereby implicating the subject
matter jurisdiction of the trial court. However, the second possibility is that
the Commonwealth timely filed one or both charging documents, but court
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error omitted them from the docket, suggesting clerical error or a breakdown
by the court rather than a deprivation of constitutional rights.
In its first citation to the record, the Commonwealth suggests a
complaint was filed on April 25, 2006. We note that this Court stated, during
Appellant’s direct appeal, that the Commonwealth charged Appellant by
criminal complaint on April 28, 2006. Harris, No. 3018 EDA 2008,
unpublished memorandum at 3. However, no citation was provided for that
statement. The document referenced by the Commonwealth appears to be a
criminal complaint charging Appellant with murder, possession of an
instrument of crime (“PIC”), and multiple firearms violations, but it is dated
April 30, 2006, and appears to have been signed7 by a magistrate on May 1,
2006. Most importantly, there is nothing indicating a time stamp provided by
the clerk of courts. Given the state of the record, we cannot tell if the
document was filed at the beginning of the criminal proceedings at issue.
Consequently, in the absence of any input from the PCRA court, we cannot
determine, from the insufficient facts in the record before us, if this document
constituted formal notice for purposes of Appellant’s subject-matter
jurisdiction claim.
The second document referenced by the Commonwealth appears to be
a criminal information prepared by the district attorney, charging Appellant
with murder, PIC, and firearms violations, which is internally dated May 25,
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7 The magistrate’s signature line does not contain the magistrate’s seal.
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2006. However, as with the prior document, there is no time stamp by the
clerk of courts indicating that it was filed immediately after it was prepared
and approved by the district attorney, even though it now appears in the
certified record. Accordingly, we cannot determine from the record whether
this document was a properly-filed criminal information.
Although the record is not clear at this time, we are not yet convinced
that Appellant is entitled to relief on this claim. There is ample evidence that
Appellant was provided with actual notice of the charges he faced, which is at
least indirect evidence that formal notice was provided. For instance,
Appellant, through trial counsel, filed numerous pre-trial motions explicitly and
implicitly acknowledging the nature of the charges, although without directly
referencing a criminal complaint or criminal information. Additionally,
Appellant had a preliminary hearing, after which the murder and firearm
offenses were held for trial. Whatever doubt there may be about whether
charges were formally filed in this case, Appellant certainly had actual notice
of the charges he ultimately faced at trial.
Our Supreme Court held in Little that no less than formal notice, not
actual notice, is required to invoke subject-matter jurisdiction. Our Supreme
Court recently revisited Little in Commonwealth v. King, 234 A.3d 549 (Pa.
2020), stating:
In Little, a coroner acted as a magistrate and held a preliminary
hearing on murder charges. Little was then indicted by a grand
jury and he entered a general guilty plea. In collateral
proceedings[,] the trial court sua sponte declared that discharge
was required because, inter alia, “the absence of a criminal
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complaint from the record voided all subsequent proceedings[.]”
Id. at 272. We stated that the court’s competence to try the case
was beyond question. “But to invoke this jurisdiction, something
more is required; it is necessary that the Commonwealth confront
the defendant with a formal and specific accusation of the crimes
charged.” Id. at 272–73. Formal notice, we said, “is so basic to
the fairness of subsequent proceedings that it cannot be waived
even if the defendant voluntarily submits to the jurisdiction of the
court.” Id. at 273…. We ultimately held that formal notice was
met by the grand jury’s indictment.
King, 234 A.3d at 557 n.9 (parenthetical citations omitted).
Thus, under Little, formal notice was provided by something other than
a criminal complaint or information. While Appellant was not indicted by a
grand jury in this matter, it might be the case that formal notice akin to a
grand jury indictment was provided by other procedural events, e.g.,
Appellant’s preliminary hearing. Nevertheless, this line of consideration may
be all for naught. The King Court directly questioned whether its prior
decision in Little remains good law:
Moreover, the continuing validity of Little’s statement that formal
notice is a component of subject matter jurisdiction is suspect.
We note that the United States Supreme Court later expressly
disavowed that same view as a matter of federal law. United
States v. Cotton, 535 U.S. 625, 631 … (2002) (“Insofar as it held
that a defective indictment deprives a court of jurisdiction, [Ex
Parte] Bain[, 121 U.S. 1 … (1887)] is overruled.”). Bain, in turn,
was cited in Albrecht while the Commonwealth ex rel. Fagan[8]
case cited Bain. The Little Court found that formal notice was a
component of subject[-]matter jurisdiction under both the United
States and Pennsylvania constitutions, but as noted[,] Cotton
disavowed the notion as a matter of federal law.
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8 Commonwealth ex rel. Fagan v. Francies, 53 Pa. Super. 278 (Pa. Super.
1913).
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King, 234 A.3d at 557 n.9. Thus, as a matter of federal law, Appellant’s claim
appears to be dead in the water under Cotton. However, it remains to be
determined if Little still applies under Pennsylvania’s Constitution.
Of course, none of this is implicated if the factual record demonstrates
that Appellant was provided with formal notice. Thus, given the state of the
record, and the PCRA court’s failure to address this claim in the first instance,
the best course of action is to vacate the order denying relief with respect to
this claim, and remand to the PCRA court for a hearing. The PCRA court
should then provide factual findings with respect to whether the
Commonwealth filed a timely criminal complaint and/or information. Even if
the court determines that one or both documents were timely filed by the
Commonwealth, it should specifically address any court or clerical errors that
occurred and correct them accordingly. If the court determines that the
Commonwealth failed to properly file a complaint or criminal information, it
should then determine if formal notice was provided by some other means
analogous to a grand jury indictment, as discussed in Little. If the PCRA court
determines that Appellant was not provided with formal notice, it should then
determine if Appellant is entitled to relief under the Pennsylvania Constitution,
despite the ruling in Cotton.
II, III, IV
Appellant’s second, third, and fourth claims concern an incident that
occurred during his trial, where the trial court learned that “Appellant’s twin
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sister and another woman[9] may have attempted to intimidate certain jurors.”
PCO at 6. The trial court “made a full record of the situation, conducted
appropriate voir dire of the affected jurors[,] and questioned the two alleged
intimidators. The [c]ourt denied Appellant’s mistrial motion and allowed the
trial to proceed. Out of the jury’s presence and out of Appellant’s presence,
the [c]ourt then conducted [a] contempt hearing.” Id.
In his second issue, Appellant claims that he was denied counsel at a
critical stage of the proceedings because his attorney was not present at the
contempt hearing. The PCRA court determined that this issue lacks merit
because Appellant was not a party to the contempt hearing and, therefore, he
had no right to counsel at that proceeding. We agree, and adopt the following
analysis by the Commonwealth as our own:
Defendants are entitled to representation by counsel at critical
stages of their criminal proceedings. Commonwealth v.
Phillips, 93 A.3d 847, 854 (Pa. Super. 2015). A contempt
hearing, however, is a separate proceeding from a criminal trial.
See Commonwealth v. Walsh, 36 A.3d 613, 617 n.4 (Pa. Super.
2012) (noting a contempt hearing is a separate proceeding,
distinguishable from the underlying criminal matter). Here, after
the relevant jurors were questioned regarding their ability to
remain impartial at [Appellant]’s trial, the court conducted
separate hearings to determine whether to hold in contempt
Rasheeda Harris, [Appellant’s] twin sister, and Latoia Drayton,
another relative[. ]N.T.[,] 1/16/08, [at] 22[]. Those hearings
were not part of [Appellant]’s criminal proceeding, nor was he a
party to them. Accordingly, his attorney’s absence from the
contempt hearings did not violate his right to counsel. Phillips,
supra; Walsh, supra.____________________________________________
9 Appellant’s sister is Rasheeda Harris, and the other woman was determined
to be Latoia Drayton. N.T., 1/16/08, at 24-25.
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Commonwealth’s Brief at 14 (emphasis in original).
Appellant appears to argue that the contempt hearing was a critical
stage of his criminal proceeding because it ostensibly involved an attempt to
intimidate his jury. See Appellant’s Brief at 18. He also argues that the
transcripts from the contempt proceedings were captioned with his docket
number. Id. However, Appellant cites no legal authority supporting his view
that he has a constitutional right to counsel at any proceeding that might stem
from an event that occurred at his trial, even though he is not a party to such
a proceeding.10 As Appellant’s assertions lack any legal support, we find them
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10 Appellant’s citation to Snyder v. Massachusetts, 291 U.S. 97 (1934),
overruled in part by Malloy v. Hogan, 378 U.S. 1 (1964), is inapposite.
Appellant asserts that the Snyder Court ruled that “an accused[,] even in
situations where the defendant is not actually confronting witnesses or
evidence against him has a constitutional right to be present in his own person
whenever his presence has a relation reasonably substantial to the fullness of
his opportunity to defend against the charge[s.]” Appellant’s Brief at 20. In
Snyder, the trial court granted the prosecution’s motion to take the jury to
view the crime scene. Id. at 103. The attorneys for each codefendant were
permitted to attend, however, the trial court denied Snyder’s motion to also
be present. The Snyder Court affirmed that decision and, thus, Snyder offers
no support for Appellant’s position and, perhaps, even weighs against it.
We agree with Appellant that a defendant’s right to be present extends to
some “situations where the defendant is not actually confronting witnesses or
evidence against him, [as] he has a due process right to be present in his own
person whenever his presence has a relation, reasonably substantial, to the
fullness of his opportunity to defend against the charge.” Commonwealth
v. Hunsberger, 58 A.3d 32, 37 (Pa. 2012) (quoting Kentucky v. Stincer,
482 U.S. 730, 745 (1987)). However, Appellant cites no cases which purport
to extend this right outside of the criminal case to which a defendant is a
party.
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unconvincing. Accordingly, we conclude that the PCRA court did not err in
dismissing this claim without a hearing.
In his related, third issue, Appellant claims that his trial counsel was
ineffective for failing to object to the trial court’s holding the contempt hearing
outside of Appellant’s or his counsel’s presence.
To prevail on a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa.
1987): (1) the underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for his or her action or inaction;
and (3) the petitioner suffered prejudice because of counsel’s
ineffectiveness.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citation
reformatted).
For the same reasons set forth in our discussion of Appellant’s second
issue, Appellant has failed to demonstrate that this claim has arguable merit,
as he did not have a right to counsel at a contempt proceeding to which he
was not a party. Similarly, Appellant cannot demonstrate that he was
prejudiced by counsel’s inaction, because there is no reason to believe that
Appellant or his counsel would have been permitted to participate in the
contempt proceedings had counsel requested it. Accordingly, we agree with
the PCRA court that Appellant is not entitled to relief on this claim.
Next, in Appellant’s fourth issue, he asserts that his trial counsel was
ineffective for failing to seek a mistrial based on the incident that gave rise to
the contempt hearing. He asserts that the jurors were exposed to “extraneous
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material and/or influence,” which was ostensibly exacerbated by the court’s
failure to question all jurors about the incident. See Appellant’s Brief at 23-
25. Appellant argues that counsel should have sought a mistrial due to the
potential that the jury was biased or intimidated by the event. Appellant
specifically focuses his argument on the jurors who were not questioned by
the court regarding the matter. See id. at 24-26.
We recognize that:
A defendant has the right to have his or her case heard by a fair,
impartial, and unbiased jury and ex parte contact between jurors
and witnesses is viewed with disfavor. There is, however, no per
se rule in this Commonwealth requiring a mistrial anytime there
is improper or inadvertent contact between a juror and a witness.
Whether such contact warrants a mistrial is a matter addressed
primarily to the discretion of the trial court. A trial court need only
grant a mistrial where the alleged prejudicial event may
reasonably be said to have deprived the moving party of a fair and
impartial trial.
Commonwealth v. Tharp, 830 A.2d 519, 532–33 (Pa. 2003) (citations
omitted).
Here, to prove that trial counsel was ineffective, Appellant must
establish that he was prejudiced by counsel’s failure to request a mistrial
based on the incident, that is, he must demonstrate a reasonable probability
that mistrial would have been granted had counsel requested one. Appellant
has failed to meet his burden in this regard.
After the trial court was informed about the incident, it questioned
several jurors about their contact with Rasheeda Harris and Latoia Drayton on
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the previous day. See N.T., 1/16/08, at 4-22. Juror 1 testified first, in
response to the court’s questions, as follows:
Q. At the end of the [c]ourt day yesterday, which was about 4:30,
information came to the [c]ourt that there was something that
occurred over the luncheon recess in relationship to yourself and
some of the other Jurors. Could you tell me what exactly
happened, where it happened, and what you saw and observed?
A. The beginning was during lunch recess where I went to pick up
my cell phone downstairs. And two of the audience members,
they just kind of like brushed [by] me and kind of cut in line in
front of 40 people to get their cell phones. Basically [they] cut in
front of me. I recognize[d] them right away. I didn’t say anything
because confrontation is not me….
Q. Did they say or do anything in relationship to you after they
cut in front of you in line?
A. No. We made eye contact and I just basically just --
Q. And was it a male or female or both?
A. Two females.
Q. Two females. While they were standing in front of you did they
say anything concerning the matter before this [c]ourt?
A. Not directly to me, no.
Q. Well, did they talk to each other about the matter? Anything
that you could hear.
A. Right after that, no. Because I recognized them right away so
I just basically just ignored them.
Id. at 4-5.
The court then asked if the jurors had communicated about the incident.
Id. at 6. Juror 1 responded that she only spoke to two other jurors about
reporting the incident to the court. Id. Juror 1 then assured the court that
the incident would not affect her ability to be impartial. Id. at 6-7.
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Next, the court questioned Juror 5, who seemed to recall a different
event. He stated that he was walking behind Rasheeda Harris and Latoia
Drayton,11 and overheard them talking. Id. at 11. He did not hear what they
were saying, and when they recognized him as a juror, they crossed the street.
Id. at 11-12. Juror 5 testified that he was not frightened or intimidated by
the event, and that he could remain impartial. Id. at 12. He also told the
court that he had not discussed the matter with any other jurors. Id. at 13.
The trial court then questioned Juror 11. Juror 11 indicated that the
whole jury went to the Reading Terminal after they were dismissed for lunch
on the previous day. Id. at 14. She then stated: “When we got down to the
main floor, about three of us, Juror number 1, with long hair, and I went to
go get our cell phones. And some people that were in the Courtroom were
making comments behind the Jurors talking about the case, trying to
antagonize us.” Id. at 15. Juror 11 also identified Rasheeda Harris and Latoia
Drayton as the people making the comments. Id. However, Juror 11 could
not describe in any detail what was said, and only told the court:
[I]t sounded like they were on the cell phone because we walked
up to get our cell phones. And they w[ere] basically saying yeah,
like we just left, all the Jurors are right in front of us. Something
about a murder trial. All of us, that’s when all of us decided okay,
let’s just get out of the building right now.
Id. at 15-16.
____________________________________________
11 Juror 5 did not identify these women by name. Rather, his description of
the women appears to coincide with Juror 1’s description. See id. at 11. In
any event, Appellant has not contested that Rasheeda Harris and Latoia
Drayton were the women involved in both incidents.
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Juror 11 then told the court that she could remain a fair juror despite
the incident. Id. at 16. However, when the court asked if she felt intimidated,
Juror 11 said that she was “[a] little intimidated.” Id. The following exchange
with the court immediately followed:
Q. Okay. Well, let me ask you this. And I want, as the lawyers do,
we want to know how you feel about it. I don’t know who these
people are. Courtrooms are open, I don’t ask people when they
come in, you know, are you part of the defendant’s family, the
victim’s family, you know. Courtrooms are open. There are people
who like to go to courtrooms. The fact that you heard this from
someone who was, who you had observed in the Courtroom
earlier, would you hold it against either the Commonwealth or the
defense because of that?
A. No, ma’am. I am just scared of when I leave the building if they
like try to make me as a marksman.
Q. If the [c]ourt arranged for the Sheriffs to escort the Jury out of
the building, or if I find out -- and I am going to do some further
investigation -- if I make sure that those individuals are not
permitted back into the Courthouse, would that make you feel
more secure?
A. Yes, ma’am.
Id. at 16-17. When questioned by the prosecutor, Juror 11 indicated that she
had discussed this incident with two other Jurors, Jurors 1 and 12, and had a
brief interaction with Juror 5 while she was talking to the other two.12
____________________________________________
12 Juror 11 stated, “And another Juror walked in, a black Juror [later identified
as Juror 5]. And he heard us talking and he said oh, yeah, there was a fellow
behind us, behind him when he left. Because he was at the end of the group.
And he said[,] well, I am not worried about him because he just turned off
and walked away.” Id. at 18. To the extent that Appellant now claims that
Juror 5 was not the man about whom Juror 11 was referring, we find that
assertion is not supported by the record.
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Finally, the court questioned Juror 12. Juror 12 indicated that although
he had engaged in a conversation with Jurors 1 and 11, he “didn’t see or
observe anything.” Id. at 20. He then stated that he could remain impartial
when asked by the court. Id.
We note that trial court advised each of the jurors that they were not to
discuss the matter any further with anyone. We also note that both Rasheeda
Harris and Latoia Drayton testified. See id. at 24-26 (Harris); 27-31
(Drayton); 32-34 (Harris). They essentially denied that they had intimidated
the jurors, although they admitted being near them at lunch the previous day.
Rasheeda Harris claimed that the only thing she said on the phone about the
case was that she told her mother (also Appellant’s mother), that “everything
looks like it is going to turn out fine for your son.” Id. at 26.
Following the above testimony, the trial court stated: “I will say for the
record that it is pretty clear to the [c]ourt that the intention of the two women
was to try to intimidate the Jury. But I don’t believe that they have crossed
the line.” Id. at 36-37. The trial court then directed the Sherriff’s Officer to
escort the jury from the courtroom in the future, and barred Harris, Drayton,
and the rest of Appellant’s family from returning to the courtroom. Id. at 39.
Appellant’s counsel subsequently declined to move for a mistrial. Id. at 40.
However, he told the judge that he was not opposed to removing certain jurors
at the court’s discretion. Id.
Instantly, Appellant argues that he was prejudiced because the court
failed to question the entire jury about the incident, ostensibly providing an
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arguable basis for his counsel to seek a mistrial on his behalf. Appellant’s
Brief at 24-25. He points to Juror 11’s testimony, suggesting it indicated that
the incident with Harris and Drayton occurred before the whole jury:
[T]he trial court questioned [Juror 11], as to “who was in the
group[,]” [and she] responded[,] “the whole jury.” Equally
important, [Juror 11] stated that when they got down to the main
floor, about three jurors, [J]uror … 1, herself[,] went to get the[ir]
cell phones, and that two female[s] that were in the courtroom
were making comments talking about the case/trial, behind the
“jurors[,”] trying to antagonize them. [Juror 11] further stated
that these two females were on a cell phone telling someone that
they just left, and “all the jurors[,”] are right in front of them,
[and] something about a murder trial[, and] that’s when all the
jurors decided[,] okay[,] let[’]s just get out of the building right
now.
Id. at 25 (emphasis in original). Appellant contends, based on Juror 11’s
testimony, that other jurors must have been exposed to the incident, and that
he was potentially prejudiced by the fact that some of the other jurors may
have been affected by it, but were never questioned by the court.
We disagree. Our Supreme Court has held that:
Once the existence of a potentially prejudicial extraneous
influence has been established by competent testimony, the trial
judge must assess the prejudicial effect of such influence.
Because a trial judge is precluded from considering evidence
concerning the subjective impact of an extraneous influence on
any juror, it has been widely recognized that the test for
determining the prejudicial effect of an extraneous influence is an
objective one. In order to determine whether an extraneous
influence is prejudicial, a trial judge must determine how an
objective, typical juror would be affected by such an influence.
Carter by Carter v. U.S. Steel Corp., 604 A.2d 1010, 1016 (Pa. 1992).
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Here, the trial court indicated that, while it believed Harris and Drayton
may have attempted to intimidate the jurors, they never “crossed the line.”
N.T., 1/16/08, at 36-37. We understand that to mean that the conduct of
Harris and Drayton did not amount to intimidation of the jurors, regardless of
their intent. That is, the court found that the extraneous influence at issue
was not prejudicial, and we ascertain no abuse of discretion in that conclusion.
Indeed, there is nothing “intimidating” about what either Harris or Drayton
said, as conveyed through the jurors’ testimony. The jurors were not
threatened, and they were not exposed to information pertaining to the trial.
At worst, they were subject to some degree of rudeness when Harris and
Drayton cut in front of the jurors on their way to retrieve Harris’ cellphone.
This is not the sort of intimidation or outside influence on jurors that warrants
a new trial, even if all the jurors were exposed to it. 13 Thus, there was no
legal basis upon which trial counsel could have sought a mistrial.
We are further unconvinced by Appellant’s citations to Commonwealth
v. Russel, 665 A.2d 1239 (Pa. Super. 1995), Commonwealth v. Gibson,
688 A.2d 1152 (Pa. 1997), and Parker v. Gladden, 385 U.S. 363 (1966), as
we find each of those cases distinguishable from the instant matter. First, in
Russel, this Court considered a claim that a new trial was warranted because
a juror indicated that “she had been confronted outside of court and was told
____________________________________________
13 Furthermore, we do not find the statement, “all the Jurors are right in front
of us,” to be either a literal or figurative threat, nor did it convey any
information about any matter relevant to the trial. Id. at 15.
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‘well, I hope you make the right decision for your own good.’” Russel, 665
A.2d at 1245. Subsequently,
all attorneys were notified[,] and the juror was questioned. Two
other jurors, in whom the affected juror had confided, were also
questioned. The trial court then questioned the remaining jury
members in an attempt to illicit whether any incident involving a
fellow jury member had affected his or her ability to render a fair
and just verdict.
The record indicates that the threatened juror and the two jurors
in whom she had confided were extensively questioned and then
dismissed from the case. Their testimony indicated that the
remaining jury members had not been tainted.
The questioning of the rest of the jury was limited to broad
questions that would not reveal the incident involving their fellow
juror. This questioning amply demonstrated both the jury’s ability
to be fair and impartial, and that no “fixed bias was planted in the
mind of any juror to require a mistrial.” Commonwealth v. Lee,
395 A.2d 935, 937 (Pa. Super. 1978).
Id. (citation reformatted).
Appellant contends that, as in Russel, each of the jurors should have
been questioned. However, the statement at issue in Russel was far more
egregious, as it involved an implicit threat made directly to a juror by a third-
party. Furthermore, only three jurors were questioned about the incident: the
threatened juror, and the two jurors in whom she had confided about the
incident. The rest of the jury was not questioned about the incident, but
instead questioned as to whether they would be affected by the removal of
those three jurors. There was no indication that the jurors were questioned
about whether they had heard similar threats. We conclude, therefore, that
Russel does not support Appellant’s argument that he may have been
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prejudiced by the failure to question the other jurors in this case. It is wholly
speculative to assume that the unquestioned jurors were affected by the
incident, when the incident was not intimidating and did not expose the jurors
to information about the trial.
In Gibson, the appellant claimed that “the trial court erred in refusing
to dismiss the entire jury venire after learning that one member of the venire
had stated, within the hearing of other potential jurors, that he knew one of
the victims and that drugs were involved in the crime.” Gibson, 688 A.2d at
1159. Like Appellant in the instant case, Gibson asserted that “the court failed
to conduct a full inquiry into whether the panel was tainted, as only one juror
was excused for cause as a result of hearing the statements.” Id. The Gibson
Court found that the trial court did not err in failing to dismiss the entire venire
because it had interviewed the six potential jurors who had been in the vicinity
of the remarks, and then dismissed both potential jurors who had heard them,
as well as the speaker. The Court further held that Gibson had “failed to
demonstrate that any of the jurors who actually heard his case had been
exposed to the comments in question.” Id. at 1160.
Gibson is distinguishable because it involved an obviously prejudicial
statement about matters concerning Gibson’s case. Here, Appellant has failed
to meet the threshold question of whether the at-issue incident involved a
potentially prejudicial extraneous influence at all. Thus, Gibson does not
afford Appellant any relief.
In Parker,
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a court bailiff assigned to shepherd the sequestered jury, which
sat for eight days, stated to one of the jurors in the presence of
others, while the jury was out walking on a public sidewalk: [“]Oh
that wicked fellow (petitioner), he is guilty[”]; and on another
occasion said to another juror under similar circumstances, [“]If
there is anything wrong (in finding petitioner guilty) the Supreme
Court will correct it.[”] Both statements were overheard by at
least one regular juror or an alternate. The trial court found
[“]that the unauthorized communication was prejudicial and that
such conduct materially affected the rights of the (petitioner).[”]
The Supreme Court of Oregon reversed, finding that [“]the bailiff’s
misconduct did not deprive (petitioner) of a constitutionally
correct trial.[”]
Parker, 385 U.S. at 363–64 (footnotes omitted). The Parker Court
reversed, holding:
As we said in Turner v. State of Louisiana, [379 U.S. 466, 473
(1965)], [“]it would be blinking reality not to recognize the
extreme prejudice inherent[”] in such statements that reached at
least three members of the jury and one alternate member. … The
State says that 10 of the jurors testified that they had not heard
the statements of the bailiff. This, however, ignores the testimony
that one of the statements was made to an unidentified juror,
which, including Mrs. Inwards and Mrs. Drake, makes three. In
any event, petitioner was entitled to be tried by 12, not 9 or even
10, impartial and unprejudiced jurors.
Id. at 365–66.
As in the previous two cases, Parker involved an inherently prejudicial
statement, and we simply reject Appellant’s contention that brushing by the
jurors or making mundane statements about being in front of the jury on a
cellphone constitute conduct comparable to any of the extraneous influences
discussed in Russel, Gibson, and Parker. As such, we conclude that
Appellant could not have been prejudiced by these events, even if he were
able to establish that some jurors not questioned by the trial court had
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witnessed them. Thus, the trial court should not have granted a mistrial if
one had been requested and, consequently, Appellant’s trial counsel cannot
be deemed infective for failing to raise a meritless motion. Accordingly, we
ascertain no error in the PCRA court’s dismissal of this claim without a hearing.
V, VI, VII
Appellant’s next series of claims concern his failure to file an appeal from
the nolle prosequi order issued by the trial court. In his fifth claim, Appellant
asserts that his trial counsel was ineffective for never consulting with him
regarding his right to file an appeal from the nolle prosequi order. In his sixth
claim, he asserts that trial court failed to advise him of his right to appeal from
that order. In his seventh claim, Appellant contends that his trial counsel was
ineffective for failing to file a direct appeal from that order, despite being told
to do so by Appellant. He further asserts that the PCRA court erred by failing
to hold an evidentiary hearing on these issues. Unfortunately, the PCRA court
did not address any of these issues in its Rule 1925(a) opinion.
We recognize that:
A nolle prosequi is a voluntary withdrawal by a prosecuting
attorney of proceedings on a particular criminal bill or information,
which at any[ ]time in the future can be lifted upon appropriate
motion in order to permit a revival of the original criminal bill or
information. Since a nolle prosequi acts neither as an acquittal
nor a conviction, double jeopardy does not attach to the original
criminal bill or information.
Commonwealth v. Ahearn, 670 A.2d 133, 135 (Pa. 1996) (citation
omitted).
Furthermore,
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we note an order granting the Commonwealth’s motion for nolle
prosequi of pending charges is generally interlocutory.
Nevertheless, such an order is immediately appealable under the
combined authority of Pa.R.Crim.P. 585 (providing, “Upon motion
of the attorney for the Commonwealth, the court may, in open
court, order a nolle prosequi of one or more charges
notwithstanding the objection of any person”); Pa.R.A.P.
311(a)(8) (stating, “An appeal may be taken as of right and
without reference to Pa.R.A.P. 341(c) from:...(8) Other Cases. An
order which is made appealable by statute or general rule.”); and
Commonwealth v. Reinhart, 353 A.2d 848 (Pa. 1976) (holding
order granting Commonwealth’s motion for nolle prosequi over
defendant’s objection is immediately appealable).
This present case involves the interpretation and application of
Rule 585 which provides in pertinent part:
Rule 585. Nolle Prosequi
(A) Upon motion of the attorney for the Commonwealth, the
court may, in open court, order a nolle prosequi of one or
more charges notwithstanding the objection of any person.
Pa.R.Crim.P. 585(A). Our Supreme Court has stated:
[T]here are two factors to be considered when a request for
a nolle prosequi is made: (1) is the reason given by the
Commonwealth for requesting the nolle prosequi valid and
reasonable, and (2) does the defendant, at the time the
nolle prosequi is requested, have a valid speedy trial claim?
Reinhart, 353 A.2d at 853 (emphasis added). Moreover, when a
court considers a motion for nolle prosequi, it should afford both
parties an opportunity to “argue the merits” of the motion. Id. at
851-52.
Commonwealth v. Rega, 856 A.2d 1242, 1245 (Pa. Super. 2004) (footnotes
omitted; citations reformatted).
In the case sub judice, the PCRA court explained:
The case proceeded to jury selection on April 16, 2007. Before
the jury was sworn, however, the Commonwealth sought a bench
warrant for Mr. Davis (a critical eyewitness), who failed to appear
for trial. The court issued the bench warrant and granted the
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Commonwealth a brief recess to find the missing witness.
Nevertheless, the police were unable to locate Mr. Davis. As a
result, the Commonwealth asked the court to enter nolle prosequi
on the charges without prejudice to re-file the criminal complaint
once the Commonwealth secured Mr. Davis as a witness.
The court granted the Commonwealth’s request on April 23, 2007.
Shortly thereafter, the Commonwealth secured Mr. Davis and
asked the court to remove the nolle prosequi; the court granted
the Commonwealth’s request on May 15, 2007. The
Commonwealth immediately reinstated the identical charges
against Appellant, and the court relisted the case for trial at the
earliest possible date consistent with the court’s calendar.
PCO at 2-3.
Turning to Appellant’s fifth claim, he asserts that his trial counsel was
ineffective for failing to advise him regarding his right to appeal from the nolle
prosequi entered on April 23, 2007, citing Commonwealth v. Carter, 21
A.3d 680 (Pa. Super. 2011), in support of his claim. In Carter, the appellant
“neither filed post-sentence motions nor a direct appeal to this Court.” Id. at
682. Carter filed a timely PCRA petition, arguing that “he was entitled to the
reinstatement of his appellate rights pursuant to the United States Supreme
Court’s decision in Roe v. Flores–Ortega, 528 U.S. 470 … (2000), because
trial counsel allegedly failed to consult with him about filing a direct appeal.”
Id. The PCRA court in Carter denied Carter’s claim without a hearing. This
Court reversed and remanded for a hearing, recognizing prior precedent that:
Counsel has a constitutionally-imposed duty to consult with the
defendant about an appeal when there is reason to think either
(1) that a rational defendant would want to appeal (for example,
because there are non-frivolous grounds for appeal), or (2) that
this particular defendant reasonably demonstrated to counsel that
he was interested in appealing. …
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A deficient failure on the part of counsel to consult with the
defendant does not automatically entitle the defendant to
reinstatement of his or her appellate rights; the defendant must
show prejudice.
Carter, 21 A.3d at 683 (cleaned up). Thus, to be entitled to relief for his fifth
claim, Appellant must demonstrate that he was prejudiced due to his counsel’s
failure to consult with him regarding a potential appeal from the nolle prosequi
order.
Appellant presents little argument in his brief concerning how he was
prejudiced by counsel’s failure to advise him of his right to appeal from the
nolle prosequi order. The alternative to granting the nolle prosequi, given the
Commonwealth’s temporary loss of a key witness, and the impending
Pa.R.Crim.P. 600 deadline, was dismissal of the charges. However,
“[d]ismissal of charges is an ‘extreme sanction’ that should be imposed
sparingly and only in cases of blatant prosecutorial misconduct.”
Commonwealth v. Goldman, 70 A.3d 874, 881 (Pa. Super. 2013).
Moreover,
[t]he grant of a petition for nolle prosequi, “lies within the sound
discretion of the [trial c]ourt, and its action will not be reversed in
the absence of an abuse of discretion.” Commonwealth v.
Stivala, 645 A.2d 257, 261 (Pa. Super. 1994)….
Judicial discretion requires action in conformity with law,
upon facts and circumstances judicially before the court,
after hearing and due consideration.
Commonwealth v. Krick, 67 A.2d 746, 749 (Pa. Super. 1949).
Rega, 856 A.2d at 1244 (citations reformatted). An “abuse of discretion is
not merely an error of judgment, but is rather the overriding or misapplication
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of the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)
(citation omitted).
Instantly, we ascertain no prejudice resulting from counsel’s alleged
failure to consult, because we conclude Appellant has failed to meet his burden
to prove that an appellate challenge to the entry of the nolle prosequi would
have been successful. In Rega, the trial court entered a nolle prosequi on
Rega’s charges, and he immediately appealed. This Court vacated the order
granting the nolle prosequi for multiple reasons, and remanded for
reconsideration by the trial court. First, the Rega Court determined that the
Commonwealth had not proffered a justification for the nolle prosequi, and
the trial court was not permitted to “intuit or infer one to justify the court’s
action.” Rega, 856 A.2d at 1245. Second, we found that the Rule 600
deadline to try Rega had already elapsed when the nolle prosequi was entered.
Id. at 1247. Thus, by entering the nolle prosequi, Rega was “effectively
precluded … from asserting his speedy trial claims.” Id. Finally, we
determined that the nolle prosequi had been entered without notice to the
defendant, and had not been argued in open court, and that Rega “should
have been given an opportunity to contest the merits of the motion and
present his speedy trial claims.” Id.- 30 -
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Here, Appellant asserts that the nolle prosequi order was filed “five
days” before the Rule 600 deadline.14 Appellant’s Brief at 40. However,
even if true, that fact establishes that Appellant did not have a Rule 600 claim
at the time the nolle prosequi was entered, because the Rule 600 deadline
had not yet elapsed. Furthermore, the prosecutor had a valid and reasonable
basis to request the nolle prosequi, as the Commonwealth’s key witness failed
to appear for Appellant’s pending trial, and a bench warrant was issued for
the witness. Under these circumstances, Appellant cannot demonstrate that
he was prejudiced by trial counsel’s failure to advise him of his right to file an
interlocutory appeal challenging the entry of a nolle prosequi, as he has failed
to establish that such an appeal had any chance to succeed. Therefore,
Appellant is not entitled to relief on this claim.
Next, Appellant contends the trial court erred by not advising him of his
right to appeal from the nolle prosequi, and that he would have appealed had
he been so advised. Citing Commonwealth v. Liptak, 573 A.2d 559 (Pa.
Super. 1990), rev’d on other grounds, Com., Dept. of Transp., Bureau of
Driver Licensing v. Tarnopolski, 626 A.2d 138, 139 (Pa. 1993), Appellant
argues that this constituted a breakdown in the court’s operation.
In Liptak, the defendant sought to appeal nunc pro tunc from his guilty
plea before a magistrate for violations of the Motor Vehicle Code. He argued
that the police officer who issued the citation had misrepresented that “no
____________________________________________
14 We assume for the limited purpose of our analysis here that Appellant’s Rule
600 calculation is accurate.
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further suspensions would be imposed on his driving privileges were he to
simply plead guilty,” which he argued constituted fraud or a negligent act by
a court official, as the guilty plea ultimately resulted in the suspension of his
driver’s license. Liptak, 573 A.2d at 559. The Liptak Court rule concluded
that the officer’s comment did not constitute fraud or negligence by a court
official, noting that
a police officer is not responsible for the administration of the
judicial system. Clearly, a district justice, or a member of his or
her staff, is a “court official” whose fraudulent, wrongful or
negligent conduct causing injury to a party would, unquestionably,
implicate the integrity of the judicial system. In such a situation,
there would be little hesitation to conclude that a breakdown in
the court’s operation had occurred. However, we deem it ill-
advised to consider police officers as among those who would be
considered a “court official.”
Id. at 561. The Liptak Court further determined that, even had Liptak been
subjected to a fraud by a court official, he was still not entitled to relief because
he failed to act promptly once he discovered the fraud. Id. at 562. Appellant
fails to explain how Liptak applies to the instant matter, and it is not obvious
to us that the reasoning of that decision supports his claim. Accordingly, we
conclude that no relief is due under Liptak. As Appellant fails to present any
other argument in support of this claim, we conclude that it lacks merit.
In his seventh issue, Appellant asserts that he directed his trial counsel
to file an appeal from the order granting nolle prosequi, and that counsel failed
to do so. Appellant alleges that his attorney’s failure constituted ineffective
assistance of counsel.
Our Supreme Court has held that:
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[W]here there is an unjustified failure to file a requested direct
appeal, the conduct of counsel falls beneath the range of
competence demanded of attorneys in criminal cases, denies the
accused the assistance of counsel guaranteed by the Sixth
Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution, as well as the right to
direct appeal under Article V, Section 9, and constitutes prejudice
for purposes of Section 9543(a)(2)(ii). Therefore, in such
circumstances, and where the remaining requirements of
the PCRA are satisfied, the petitioner is not required to
establish his innocence or demonstrate the merits of the
issue or issues which would have been raised on appeal.
Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (emphasis added).
Thus, in order to demonstrate that he is entitled to relief for this claim,
Appellant does not have to establish that he was prejudiced by counsel’s
failure to file the requested appeal.
Instantly, the record is devoid of evidence as to whether Appellant
requested an appeal from the entry of nolle prosequi. The Commonwealth
asserts that Appellant
did not timely request that appeal. He asserted below that he did
not ask counsel to file an interlocutory appeal until October 10,
2007 (Amended PCRA Petition, 5/20/16, [at] 36). The thirty-day
period for filing an appeal from that May 15, 2007 Order – June
14, 2007 – had long passed. See Pa.R.A.P. 903(a) (general rule
providing for thirty-day time limit for filing a notice of appeal).
There was no arguable merit to the instant claim because, at the
time [Appellant] claims he requested an appeal, that appeal would
have been untimely.
Commonwealth’s Brief at 24. In his reply brief, Appellant argues that he did,
in fact, assert in his amended PCRA petition that he asked trial counsel to file
an appeal within the thirty-day period, and that he continued to request that
appeal throughout the summer of 2007. See Appellant’s Reply Brief at 9.
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Our review of the record cannot resolve this factual dispute, and the
PCRA court did not make any factual findings on this point. The
Commonwealth focuses on Appellant’s assertion, in his amended PCRA
petition, that he sent a certified letter to his trial counsel, on October 10, 2007,
requesting an appeal from the nolle prosequi. See Amended PCRA Petition,
5/20/16, at 36. However, the Commonwealth ignores Appellant’s prior
assertions in the petition. According to Appellant, he received a letter from
his trial counsel on May 20, 2007, and then called counsel to discuss it. Id.It was at that time that counsel orally informed Appellant that the case had
been nolle prossed. Id. After researching the issue on his own, and
discovering that the nolle prosequi was immediately appealable, Appellant
claims he called his attorney and requested that he file an appeal, and that he
repeated this oral request “throughout the summer of 2007[.]” Id.While Appellant did not specify the date on which he first orally
requested the appeal, his claim that he requested it before the June 14, 2007
deadline is not inconsistent with his factual assertion that he repeatedly
requested the appeal during the summer of 2007, after his initial request was
not honored by his trial counsel. Accordingly, we reject the Commonwealth’s
contention that this matter can be resolved on the face of the petition and the
averments contained therein. Whether Appellant requested the appeal before
June 14, 2007, if at all, is a factual matter that should have been resolved at
an evidentiary hearing. Accordingly, we vacate the order granting relief in
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part, and remand for an evidentiary hearing to determine if, and/or when,
Appellant requested an appeal from the nolle prosequi.
VIII
Next, Appellant asserts that his counsel was ineffective for failing to
object to his trial on double-jeopardy grounds. He asserts that double
jeopardy attached when “jury selection was complete[d] … on April 23,
2007[,]” when the prosecutor requested the nolle prosequi. Appellant’s Brief
at 40.
The Double Jeopardy Clause “protects against a second
prosecution for the same offense after an acquittal, a second
prosecution for the same offense after a conviction and multiple
punishments for the same offense.” Commonwealth v. McCord,
700 A.2d 938, 941 (Pa. Super. 1997). However, the constitutional
prohibition against double jeopardy does not apply unless
jeopardy attaches. See Commonwealth v. Ortega, 995 A.2d
879, 887 (Pa. Super. 2010). In Pennsylvania, jeopardy attaches
when a defendant stands before a tribunal where guilt or
innocence will be determined. Id. In a criminal jury trial, this
occurs when the jury is sworn. Id.Commonwealth v. Young, 35 A.3d 54, 59 (Pa. Super. 2011).
The Commonwealth argues:
A jury must be both empaneled and sworn in order for jeopardy
to attach. See Commonwealth v. Bronson, 393 A.3d 453, 454
(Pa. 1978) (“It is well-settled that in order for jeopardy to attach,
the jury must be empaneled and sworn.”); Commonwealth v.
Hallman, 67 A.3d 1256, 1261 (Pa. Super. 2013) (“In a criminal
jury trial, jeopardy attaches when the jury is sworn.”); []Young,
35 A.3d [at] 59 … (same). Here, the order granting a nolle
prosequi was issued before the jury was sworn ([Trial Court]
Opinion, … 12/22/09, [at] 3) (“Prior to swearing the jury, the
[c]ourt, on April 23, 2007, granted the Commonwealth’s motion
to nolle pros without prejudice...”) (emphasis added).
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Commonwealth’s Brief at 25.
We agree with the Commonwealth that Appellant’s double-jeopardy
claim is meritless, as the record demonstrates that the original jury, although
empaneled, had yet to be sworn when the nolle prosequi was entered. Thus,
counsel was not ineffective for failing to object to his trial on double-jeopardy
grounds, as “[i]t is well-settled that counsel may not be deemed ineffective
for failing to raise a meritless claim.” Commonwealth v. Tarver, 420 A.2d
438, 438 (Pa. 1980).
In his reply brief, Appellant, for the first time, raises the novel claim that
since the jury selection process was complete, the jury must have been sworn
in pursuant to Pa.R.Crim.P. 640(A), which provides that: “After all jurors have
been selected, the jury, including any alternates, shall be sworn as a body to
hear the cause.” See Appellant’s Reply Brief at 11. As this particular
argument was not raised previously by Appellant, it would normally be
subjected to our waiver doctrine. 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”);
and see Commonwealth v. Otero, 860 A.2d 1052, 1054 (Pa. Super. 2004)
(“Issues presented before this court for the first time in a reply brief are
waived. See Pa.R.A.P. 2113 (scope of the reply brief is limited to matters
raised by [the] appellee and not previously addressed in [the] appellant’s
brief).”).
However, some double-jeopardy claims are clearly not subject to
waiver, as they implicate the legality of sentence. As our Supreme Court has
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explained, “the double jeopardy prohibition against multiple punishment for
the same offense serves to prevent the sentencing court from prescribing
greater punishment than the legislature intended. As a result, such challenges
have been treated as implicating the legality of the sentence.”
Commonwealth v. Andrews, 768 A.2d 309, 313 (Pa. 2001) (citations and
quotation marks omitted). Here, Appellant’s claim does not challenge the
imposition of multiple punishments for the same offense. Instead, it
implicates another aspect of double-jeopardy protection under the state and
federal constitutions,15 that which pertains to the “prohibition against
successive trials.” Burks v. U.S., 437 U.S. 1, 11 (1978). The Double
Jeopardy Clause “does not allow the State to make repeated attempts to
convict an individual for an alleged offense, since the constitutional prohibition
against ‘double jeopardy’ was designed to protect an individual from being
subjected to the hazards of trial and possible conviction more than once for
an alleged offense.” Id. (cleaned up). Arguably, because Appellant’s claim
implicates the ban on successive trials, and not the imposition of multiple
punishments for the same offense, his claim is subject to waiver because it
does not implicate the legality of his sentence. Nevertheless, out of an
abundance of caution, we will address Appellant’s newly-raised, novel double-
____________________________________________
15 “The double jeopardy clauses of the United States and Pennsylvania
Constitutions are nearly identical in language and co-extensive in scope.”
Commonwealth v. McMullen, 745 A.2d 683, 686 (Pa. Super. 2000)
(footnotes omitted).
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jeopardy claim, as we are unable to uncover any caselaw making such a
distinction for waiver purposes.
Appellant’s argument hinges on the notion that Rule 640(A)’s language
is “mandatory,” Appellant’s Reply Brief at 11, as it states that the jury “shall
be sworn” after all jurors have been selected. Pa.R.Crim.P. 640(A) (emphasis
added). Appellant provides no caselaw in support of this argument and, thus,
relies solely on his interpretation of the text of the rule. In essence, he
contends that, because the jury was empaneled, his double-jeopardy
protections attached because Rule 640(A) dictates that an empaneled jury
must be sworn.
However, it is beyond dispute that the jury was not actually sworn,
regardless of Rule 640(A). As to Appellant’s contention that Rule 640(A)
dictates that a jury must be immediately sworn after it is selected, this Court
rejected a similar argument in Commonwealth v. Darush, 420 A.2d 1071,
1077 (Pa. Super. 1980), vacated on other grounds, 459 A.2d 727 (Pa. 1983).
In Darush, the defendant argued that the trial court erred when it failed to
“swear the jury immediately after it was chosen.” Id. at 1077. Examining
the prior version of Rule 640(A), which contained identical language to the
present version, the Darush Court rejected that argument, stating that the
defendant,
directs us to no authority, and our research has disclosed none,
requiring the jury to be sworn immediately after it is chosen.5 “In
the absence of statute, the time for swearing jurors in chief after
they have been examined and opportunity given for challenge is
within the discretion of the court.” 50 C.J.S. Juries s 294b.
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5 Pa.R.Crim.P. 1110 provides:
(a) After all jurors have been selected, the jury, including
any alternates, shall be sworn as a body to hear the
cause.
Id.
Thus, the Darush Court rejected the notion that the language of the at-
issue rule dictates that the jury must be immediately sworn after it is selected,
as the timing of the swearing-in of the jury after selection is left to the court’s
discretion. Accordingly, even assuming Appellant’s newly-raised double
jeopardy claim was not waived, we conclude that it is meritless.
IX
In his ninth claim, Appellant contends that he was not awarded the
appropriate amount of time-credit at sentencing for the time he spent in pre-
trial incarceration. The PCRA court determined that this issue was not properly
before the court in a PCRA petition, citing this Court’s decision in
Commonwealth v. Heredia, 97 A.3d 392 (Pa. Super. 2014), and on that
basis refused to address the claim. See PCO at 7-8.
Heredia, however, is not analogous to the instant matter. In that case,
the issue was whether the Department of Corrections had awarded the
appropriate amount of time served in pre-trial incarceration, where the
sentencing order “expressly and unambiguously granted him ‘credit for any
time served.’” Heredia, 97 A.3d at 395. However,
[a]n appellant’s challenge to the trial court’s failure to award credit
for time spent in custody prior to sentencing involves the legality
of sentence. Commonwealth v. Hollawell, 604 A.2d 723, 725
(Pa. Super. 1992). Issues concerning the legality of sentence are
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cognizable under the PCRA. Commonwealth v. Hockenberry,
689 A.2d 283, 288 (Pa. Super. 1997).
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (citations
reformatted).
Here, the Commonwealth concedes that a time-credit claim addressing
the trial court’s imposition of sentence is a legality-of-sentencing claim that is
cognizable under the PCRA, and further states that it is unable “to assess on
the existing record the merits of the claim [Appellant] may be asserting. He
may have received credit for the time he served in prison prior to trial. The
matter [was] not addressed at sentencing. Additionally, the sentencing order
does not appear … in the certified record.” Commonwealth’s Brief at 26.
Furthermore,
the Commonwealth does not oppose a limited remand for the
purpose of allowing the trial court to issue a new sentencing order
to clarify whether [Appellant] received time credit for any
applicable time periods in this case, and, more importantly,
whether the sentence in the instant case was imposed concurrent
with, or consecutive to, the sentence for [Appellant]’s firearms
convictions in his other case.
Id. at 27.
As the PCRA court erred in determining that Appellant’s time-credit
claim was not cognizable under the PCRA, and because we agree with
Commonwealth that the state of the record does not permit us to address the
claim at this time, we vacate the order denying relief in part, and remand for
further proceedings to address this claim.
X
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Next, Appellant asserts that his counsel was ineffective for failing to seek
suppression of the statements he made to Coleman. Appellant asserts that
Coleman,
was acting under instructions as a paid informant for the federal
government[, and Appellant] was unaware that his old … friend
was in fact a federal informant. Finally, [Appellant] was in custody
and under indictment at the time of the conversation, [and trial
c]ounsel knew this and did not move to suppress or object to these
statements.
Appellant’s Brief at 43. To support this claim, Appellant cites U.S. v. Henry,
447 U.S. 264 (1980).
In Henry, a witness, Nichols, testified that while he and Henry were
incarcerated together, “Henry described to him the details of the robbery and
stated that the only evidence connecting him to the robbery was [a] rental
receipt[; however, t]he jury was not informed that Nichols was a paid
Government informant.” Id. at 267. Indeed,
[t]he Court of Appeals viewed the record as showing that Nichols
deliberately used his position to secure incriminating information
from Henry when counsel was not present and held that conduct
attributable to the Government. Nichols had been a paid
Government informant for more than a year; moreover, the FBI
agent was aware that Nichols had access to Henry and would be
able to engage him in conversations without arousing Henry’s
suspicion. The arrangement between Nichols and the agent was
on a contingent-fee basis; Nichols was to be paid only if he
produced useful information.
Id. at 270 (footnote omitted).
The Supreme Court held that:
Under the strictures of the Court’s holdings on the exclusion of
evidence, we conclude that the Court of Appeals did not err in
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holding that Henry’s statements to Nichols should not have been
admitted at trial. By intentionally creating a situation likely
to induce Henry to make incriminating statements without
the assistance of counsel, the Government violated Henry’s Sixth
Amendment right to counsel.
Id. at 274 (emphasis added).
Later, in Commonwealth v. Hawkins, 701 A.2d 492 (Pa. 1997), our
Supreme Court clarified the standard for assessing the suppressibility of
statements to jailhouse informants as follows:
Information secured by an informant acting as an agent of the
government must be suppressed where the informant acts under
instructions as an informant for the government, where he
presents himself as no more than a fellow inmate rather than a
governmental agent, and where the suspect is in custody and
under indictment at the time of the questioning by the informant
because such questioning outside the presence of the accused’s
counsel violates the accused’s Sixth Amendment right to counsel.
In order to prove such a violation, the defendant must
demonstrate that the police and the informant took some action,
beyond mere listening, which was designed deliberately to elicit
incriminating remarks. Moreover, the defendant must show that
the informant was acting as an agent of the government.
Individual acts do not become imbued with the character of
governmental action merely because they are later relied upon
and used by the government in furtherance of governmental
objectives.
Hawkins, 701 A.2d at 505 (citations omitted).
Appellant is not entitled to relief under Henry. Here, the PCRA court
determined that “Coleman’s testimony was that Appellant approached him,
struck up a conversation[,] and volunteered his confession.” PCO at 7.
Relying on Hawkins, the PCRA court concluded that because Appellant
provided nothing to contradict that account in his petition, he could not
demonstrate counsel’s ineffectiveness for failing to seek to suppress
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Coleman’s statement, as there is no evidence that Coleman made any effort
to solicit Appellant’s inculpatory remarks. Id. We also note that, in his brief,
Appellant fails to articulate what evidence he intended to present at an
evidentiary hearing that would show, or tend to show, that his statements
were deliberately elicited by Coleman in violation of his 6th Amendment right
to counsel, even if we assume Coleman was acting as a de facto government
agent. Accordingly, we ascertain no error in the PCRA court’s denial of this
claim without a hearing.16
XI
Next, Appellant claims that he was denied his right to counsel at a
motions hearing held on January 14, 2008. He asserts that he presented
various arguments to the trial court at that hearing, and counsel “did not say
anything” and, instead, “allowed [Appellant] to argue against [the prosecutor,
but] counsel did not object …[or] inform the court that [Appellant] could not
act as counsel.” Appellant’s Brief at 44-45. Appellant argues that counsel did
not subject the prosecution to meaningful adversarial testing at this stage of
the proceedings.
____________________________________________
16 Moreover, it is clear from the record that Coleman’s cooperation with the
prosecution in this case was secured through a plea agreement with the
federal authorities on an unrelated matter, which was admitted into evidence.
See N.T., 1/16/08, at 93-94. Appellant’s counsel extensively cross-examined
Coleman over the nature of his deal with the government in relation to this
case. Id. at 108-43. Thus, the jury was aware of the circumstances of
Coleman’s cooperation with the government when he testified.
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The Commonwealth complains that Appellant failed to develop this claim
and failed to cite to the relevant notes of testimony in his brief. Appellant
asserts in his reply brief that he referred to the relevant transcripts in his PCRA
petition, and provides those citations. However, he also fails to develop this
claim beyond making the bald assertion that counsel failed to subject the
Commonwealth’s case to meaningful adversarial testing. Notably, Appellant
fails to explain what, specifically, counsel should have done and why.
Because this claim remains undeveloped, we agree with the
Commonwealth that it is, therefore, waived. We have reviewed the pages
cited by Appellant in his reply brief, and we fail to observe how the referenced
portions of the January 14, 2008 hearing are relevant to his claim that he was
denied his right to counsel at that hearing. Appellant cites to pages 3, 6, 8,
10, and 13 of that transcript, but fails to describe or explain what occurred
on those pages, and/or how counsel’s representation was deficient or entirely
absent based upon that portion of the record. Our review of the record shows
that these pages cover the trial court’s opening remarks to potential jurors,
see N.T., 1/14/08, at 3-7, an introduction of the parties, id. at 7, as well the
first few voir dire questions, id. at 8-13. Yet, nothing in Appellant’s argument
in his eleventh issue concerns voir dire at all. Accordingly, we deem this issue
waived for lack of development. See Commonwealth v. Walter, 966 A.2d
560, 566 (Pa. 2009) (stating that when an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived).
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XII
Next, Appellant asserts that the “trial court[,] the Superior Court[, and]
the Commonwealth obstructed [Appellant] [on] direct appeal.” Appellant’s
Brief at 47. However, most of Appellant’s argument is directed at this Court.
Appellant asserts that the author of the memorandum dismissing his direct
appeal, President Judge Emeritus Susan Peikes Gantman, “rewrote the record
to justify denying [Appellant] relief….” Id. at 48. Appellant contends, without
any supporting evidence, that PJE Gantman altered the record at various
points regarding how various continuances were attributed to Appellant or the
Commonwealth as they pertained to Appellant’s Rule 600 claim on direct
appeal, and that the memorandum dismissing his direct appeal was rife with
other factual errors regarding the record pertaining to that claim.17
The Commonwealth argues:
The instant claim is unreviewable. Assuming arguendo that this
Court had erred in reviewing his Rule 600 claim on direct appeal,
[Appellant]’s recourse was to raise that claim in a petition for
allowance of appeal to the Supreme Court of Pennsylvania. He
did not do that. For purposes of PCRA review, a petitioner has the
burden to demonstrate that his allegations of error have not
[been] previously waived. 42 Pa.C.S. § 9543(a)(3). Issues are
waived pursuant to the PCRA “if the petitioner could have raised
it but failed to do so … on appeal.” 42 Pa.C.S. § 9544(b). Because
[Appellant] failed to pursue his altered-record claim in the
Supreme Court of Pennsylvania, it was waived for purposes of his
collateral review.
____________________________________________
17 Appellant relatedly, or alternatively, alleges that the Commonwealth or the
trial court participated in this scheme. See Appellant’s Reply Brief at 18.
Regardless, our analysis, concluding that this claim has been waived, remains
the same.
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Commonwealth Brief at 34-35.
We agree with the Commonwealth. Any claims that this Court altered
the record, or otherwise misapprehended the record in dismissing Appellant’s
claims on direct appeal, were immediately reviewable by seeking allowance of
appeal with our Supreme Court. Under the PCRA, “an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state post[-]conviction proceeding.” 42
Pa.C.S. § 9544(b). Appellant’s record-alteration claim arose during his direct
appeal, as did his related claim that the direct appeal panel misapprehended
the facts concerning his Rule 600 claim. Appellant had the opportunity to
raise these issues in our Supreme Court, but declined to do so.18 Accordingly,
we deem these claims waived pursuant to Section 9544(b).
XIII
Finally, Appellant asserts that trial counsel was ineffective for failing to
object to the lifting of the nolle prosequi and his subsequent trial, arguing that
the Commonwealth was not permitted to proceed on the nolle prossed charges
without first re-arresting him, and that counsel should have objected on that
____________________________________________
18 Appellant argues that his failure to raise this issue on direct appeal before
our Supreme Court is excused because he is raising this claim under the
“government interference exception” set forth in 42 Pa.C.S. § 9543(a)(2)(iv),
which provides for PCRA relief where “the conviction or sentence” resulted
from the “improper obstruction by government officials of the petitioner’s right
of appeal where a meritorious appealable issue existed and was properly
preserved in the trial court.” 42 Pa.C.S. § 9543(a)(2)(iv). However, Section
9543(a) is not an exception to Section 9544(b). Assuming Appellant’s claim
meets the criteria of Section 9543(a)(2)(iv), he must still satisfy the dictates
of Section 9544(b).
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basis. Appellant’s Brief at 49. Appellant provides no support for this claim
beyond his bald citation of the Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution.
Appellant fails to offer any analysis of how these provisions support his
assertion that a case cannot proceed to trial, following reinstatement of nolle
prossed charges, unless the defendant is re-arrested. Accordingly, we deem
this claim waived for lack of development. See Walter, supra.
Conclusion
We affirm the order denying Appellant’s PCRA petition with respect to
all but Appellant’s first, seventh, and ninth claims, for the reasons discussed
supra. With regard to those three claims, we vacate the portion of the order
denying relief and remand for further proceedings consistent with this
memorandum.
Order affirmed in part and vacated in part. Case remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2021
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