Com. v. Rush, L. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LARRY RUSH :
:
Appellant : No. 2932 EDA 2019
Appeal from the PCRA Order Entered September 5, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0722721-1987
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 10, 2021
Larry Rush appeals pro se from the denial of his Post-Conviction Relief
Act (“PCRA”) petition. After careful review, we affirm.
The PCRA court summarized the facts as follows:
Complainants, Annamay Little and Denise Kellar were
working at a flower shop on the corner of 21st and Locust Streets,
in Philadelphia, PA on April 15, 1987 at approximately 5:30 p.m.
when Appellant entered the store and asked to purchase a rose.
While the complainants were assisting him, Appellant grabbed
Annamay and threw her to the floor and produced a knife and held
it to her face and then pushed both complainants into the store’s
bathroom. Annamay eventually assisted Appellant in opening the
cash register which he then emptied of its cash contents.
Appellant ordered both wom[e]n to pool their valuables; however,
both women managed to hide some of their possessions, including
Annamay’s wallet and Denise’s credit cards and jewelry while
Appellant was in the front of the store.
Appellant returned to the bathroom and ordered the women
to undress and threatened to kill them if they did not remove their
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* Retired Senior Judge assigned to the Superior Court.
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underwear and they eventually complied. Appellant then held the
knife to Annamay’s throat and forced her to kiss him while he
fondled her breasts and genitals. After she began to cry he stated
that he would not rape her. Appellant than forced Denise to kiss
him as well.
Appellant then used his shirt sleeve to wipe off the door
handle and light switch telling the complainants that he was a
“professional” and that the police would never catch him or do
anything to him. Appellant eventually left the store after
threatening to kill both women if they did not stay in the bathroom
for twenty (20) minutes. After Appellant left, the victims called
the police and gave descriptions of [Appellant] and also worked
with a police sketch artist to create a composite drawing of the
suspect. Thereafter, both victims separately viewed police photo
arrays and picked Appellant out as the perpetrator. Denise
however was not ‘absolutely positive’ as the perpetrator had worn
a hat and she stated that she was not certain that the person she
selected as the perpetrator had the long braided hair as the person
in the array. Approximately two weeks later both victims
separately positively identified Appellant as the perpetrator in six-
person lineups that included the Appellant and others all wearing
hats.
Just before the flower store robbery Appellant had entered
a doctor’s office across the street from the flower store. He
entered and after being told the doctor was out he left only to
return twenty minutes later again and asked to see a doctor for
nitroglycerin for his heart condition. Both the doctor’s son and
secretary asked [Appellant] to leave the office. The doctor’s son
then called police to report what he believed to be suspicious
behavior from [Appellant] and described Appellant to the police as
wearing [a] white or beige knit cap.
Later that same day, Appellant was getting his hair styled
at his home by a neighbor when he pulled out a large amount of
money from his pocket saying that he “beats people for their
money.”
PCRA Court Opinion, 10/15/20, at 3-4 (citations omitted).
Appellant was arrested and charged with two counts of robbery, two
counts of indecent assault, and possession of an instrument of crime (“PIC”).
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Prior to trial, trial counsel litigated a motion to suppress the identifications of
Appellant by the two victims, the doctor’s office secretary, and the doctor’s
son. After a hearing, the trial court denied the motion.
Following a jury trial, on December 9, 1987, Appellant was convicted of
all charges. Post-verdict motions were timely filed, argued, and denied. The
trial court sentenced Appellant to two consecutive terms of ten to twenty years
of incarceration for the robbery convictions, two consecutive terms of one to
two years of incarceration for the indecent assault convictions, and one
consecutive term of two and one-half to five years of incarceration on the PIC
conviction. In total, Appellant received an aggregate sentence of twenty-four
and one-half to forty-nine years of incarceration.1
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1 The trial court explained its reasoning for the sentence imposed as follows:
Finally, a note concerning the sentence imposed should be made.
Very shortly following [Appellant’s] release from a nine year
incarceration on charges of [a]ggravated [a]ssault with a knife,
[Appellant] not only committed this crime, but was also arrested
on yet another charge of [a]ggravated [a]ssault with a knife. In
that case for which he was subsequently convicted, he stabbed a
sales woman in a book store eight times. Further, at the time of
this sentencing he faced an open case for [m]urder in the [f]irst
[d]egree for which he was later convicted. The [c]ourt notes that
[v]ictim [i]mpact [s]tatements were filed in all cases wherein the
[c]ourt was advised of severe after-affects suffered by the victims
as a result of their experiences. The [Appellant] was sentenced
accordingly.
Trial Court Opinion, 4/17/89, at 10.
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A timely direct appeal followed, wherein Appellant alleged that the trial
court erred by: (1) not making a full inquiry of three prospective jurors as to
potential challenges for cause; (2) admitting the testimony of Georgette Sims,
an acquaintance who testified that she saw Appellant hours after the robbery
with a large amount of cash that he claimed to have collected by beating
people; and (3) improperly instructing the jury that it could find unwanted
touching constituted indecent assault if it found that Appellant inserted his
tongue into his victims’ mouths for the purpose of sexual desire. Appellant
also argued that the evidence was insufficient to sustain a verdict of guilt as
to indecent assault upon one of the victims. We affirmed the trial court’s
judgment of sentence and our Supreme Court denied Appellant’s subsequent
petition for allowance of appeal. Commonwealth v. Rush, 571 A.2d 505(Pa.Super. 1989) (unpublished memorandum), appeal denied, 586 A.2d 923(Pa. 1990).
On January 14, 1997, Appellant filed a timely pro se PCRA petition.2
However, due to a fifteen-year breakdown in the court system, no action took
place on his petition until April of 2012 when Appellant’s case was reassigned
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2 Appellant filed his petition after the 1995 amendments to the PCRA were
enacted. The amendments gave defendants who had not previously filed a
PCRA petition until January 16, 1997, to file one. See Commonwealth v.
Tedford, 781 A.2d 1167, 1171 (Pa. 2001). Since Appellant had not previously
filed a PCRA petition his January 14, 1997 petition was timely filed.
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to a new PCRA court. Following a Grazier3 hearing, Appellant elected to
represent himself. At Appellant’s request, the PCRA court held his petition in
abeyance while Appellant litigated a PCRA petition related to a different
conviction. See N.T. Status Hearing, 1/31/14, at 5-7.
On August 15, 2017, Appellant filed an amended PCRA petition,
asserting that trial counsel was ineffective for failing to meet with him before
trial and that the Philadelphia Police Department and District Attorney’s Office
conspired to fabricate evidence against him. See Amended PCRA Petition,
8/15/17, at 20-23, 26-30. Over the next few years, Appellant litigated various
motions, including requests for discovery and funds for defense services
including an investigator and expert testimony. The Commonwealth
responded with a motion to dismiss his PCRA petition, arguing that Appellant’s
claims were unsubstantiated and meritless.
Appellant filed a response to the Commonwealth’s motion to dismiss in
which he alleged that if “counsel had met with [him] prior to trial[,] [Appellant]
would have disclosed a variety of important, credible information that would
have led to [Appellant] ultimately being found innocent of the crime.” See
Response to Commonwealth, 3/1/19, at 6. Appellant did not disclose the
nature of this “important” information. In his next claim, Appellant asserted
that the government engaged in a conspiracy to convict him that involved
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3 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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procuring false identifications and planting evidence. Id. at 8-9. Again,
Appellant offered nothing to substantiate his claim, but alleged that he would
prove his allegations at an evidentiary hearing. Id.
After a status hearing regarding the issues raised by Appellant in his
amended PCRA petition, the PCRA court determined that the issues were
meritless and denied Appellant’s petition. See Order, 9/5/19.4 This appeal
followed. Appellant failed to comply with the PCRA court’s Pa.R.A.P. 1925
order. However, the PCRA court issued a Rule 1925(a) Opinion.
Appellant presents the following issues for our review:
I. Whether Appellant was denied a fair trial, effective
assistance of counsel and due process of law under the
Pennsylvania and Federal Constitutions when his attorney failed
to meet with him prior to his trial?
II. Whether the prosecution committed intentional
prosecutorial misconduct to the point of barring re-trial under
Berger, Russell Smith and Mortorano?
III. Whether the PCRA court erred in summarily dismissing
Appellant’s PCRA petition, wherein the petition presented genuine
issues of material facts, without an evidentiary hearing; thereby
depriving Appellant of the opportunity to substantiate his
substantial state and federal constitutional claims and violating his
due process?
Appellant’s brief at 5.
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4 Since Appellant agreed to waive his right to receive a Pa.R.Crim.P. 907
notice, the court issued an order to deny the petition without first providing
Appellant with a Rule 907 notice. See Order 9/5/19.
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Before we address the merits of Appellant’s claims, we must determine
whether this appeal is properly before us. As the PCRA court and the
Commonwealth note, Appellant never filed a 1925(b) statement. The
consequence of a late 1925(b) statement is usually waiver of all issues on
appeal. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Burton,
973 A.2d 428, 432-33 (Pa.Super. 2009) (noting that a complete failure to file
a Rule 1925(b) statement results in waiver of all issues). However, waiver
does not apply in the instant case because the PCRA court’s October 16, 2019
order was not entered on the docket in compliance with Pa.R.Crim.P.
114(C)(2)(c) by indicating the fact and date of service on the parties. See
Commonwealth v. Chester, 163 A.3d 470, 472 (Pa.Super. 2017) (holding
order to file Rule 1925(b) statement was unenforceable where there was no
indication on the docket of the date of service of the order requiring its filing).
Thus, we decline to find Appellant’s claims waived on this basis.
We begin with a discussion of the pertinent legal principles. Our “review
is limited to the findings of the PCRA court and the evidence of record,” and
we do not “disturb a PCRA court’s ruling if it is supported by evidence of record
and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
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standard of review is de novo and our scope of review is plenary.” Id. “It 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)
(citing Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012)).
In his first claim, Appellant alleges that his trial counsel was ineffective
for failing to meet with him. See Appellant’s brief at 18-24. We are mindful
that counsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise. See Commonwealth v. Becker, 192 A.3d 106,
112 (Pa.Super. 2018). To do so, a petitioner must plead and prove that: (1)
the legal claim underlying his ineffectiveness claim has arguable merit; (2)
counsel’s decision to act (or not) lacked a reasonable basis designed to
effectuate the petitioner’s interests; and (3) prejudice resulted. Id. The
failure to establish any of the three prongs is fatal to the claim. Id. at 113.
Regarding claims that counsel was ineffective for failing to consult with
his client, we have explained that:
Counsel is not deemed ineffective per se merely because of the
short amount of time he has met with his client. The time actually
spent by counsel with the accused discussing his case is not
necessarily related to, and affords no basis for inferring, the extent
of total trial preparation. Rather, to establish [ineffectiveness of
counsel,] Appellant must establish that counsel inexcusably failed
to raise issues which, had they been raised, would have afforded
Appellant relief.
Commonwealth v. Watley, 153 A.3d 1034, 1046 (Pa.Super. 2016)
(quotation and citations omitted).
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Herein, Appellant alleges that counsel was ineffective for failing to meet
with him in person from the time of his arrest until the start of his trial, which
was approximately six months. See Appellant’s brief at 19. While he has not
attached any evidence to support his claim, Appellant previously argued that,
if granted a hearing, he would submit documents from the Philadelphia
Department of Corrections to substantiate that claim. See Amended PCRA
petition, 8/15/17, at 21.
The PCRA court found that Appellant’s claim was waived because he
failed to substantiate his allegation that counsel did not meet with him. See
PCRA Court Opinion, 10/15/20, at 5. Our own review confirms that the PCRA
court’s analysis is amply supported by the record and the law. In his brief,
Appellant merely states that counsel failed to meet with him before trial, and
therefore, he is entitled to relief. See Appellant’s brief at 18-24. Contrary to
established precedent which requires him to plead sufficient facts necessary
to prove each prong of the ineffective assistance of counsel claim in his PCRA
petition, Appellant offered no evidentiary support. See Pa.R.Crim.P.
902(A)(12) (explaining that a PCRA petition must contain “the facts
supporting each [ground complained of] that do not appear in the record, and
an identification of any affidavits, documents, and other evidence showing
such facts”).
Assuming, arguendo, that counsel did not meet with Appellant, the PCRA
court alternatively denied relief because Appellant had not set forth any issues
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that counsel failed to raise as a result of not meeting with Appellant. See
PCRA Court Opinion, 10/15/20, at 6. Moreover, the PCRA court found that
Appellant’s substantive claim was also woefully underdeveloped. Id. Since
Appellant did not assert what issues counsel failed to raise or demonstrate
how he was prejudiced by counsel’s alleged failure to meet with him before
trial, we find that the PCRA court did not err when it denied this claim. See
also Commonwealth v Wharton, 811 A.2d 978, 986 (Pa. 2002) (“Claims of
ineffective assistance of counsel are not self-proving.”). Thus, no relief is due
on Appellant’s first claim.
In his second issue, Appellant avers that the Commonwealth engaged
in prosecutorial misconduct when it allegedly undertook “a conspiratorial plot
to frame Appellant for yet another crime” in collusion with the Philadelphia
Police Department. See Appellant’s brief at 25. Specifically, Appellant argues
that Homicide Detective James Morton manipulated the victims’ identifications
of Appellant by showing them Appellant’s mug shot and instructing them to
positively identify Appellant in the ensuing lineups. See Appellant’s brief at
25-26. He alleges further that Detective Morton obtained a “fraudulent”
search warrant for Appellant’s residence, where he planted evidence of the
crime. Id. at 26. Appellant argues that this “egregious” behavior was
undertaken with the aim of obtaining a conviction that the Commonwealth
could use as an aggravating circumstance in Appellant’s separate capital
punishment case. Id. at 30-31. The PCRA court held that this claim was
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waived due to Appellant’s failure to raise it on direct appeal. See PCRA
Opinion, 10/15/20, at 7.
The PCRA statute expressly provides that issues are waived if the
petitioner could have raised them at an earlier proceeding but failed to do so.
See 42 Pa.C.S. § 9544(b) (“[A]n 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.”); see also
Commonwealth v. Santiago, 855 A.2d 682 (Pa.Super. 2004) (affirming
waiver of a claim of prosecutorial misconduct in a PCRA petition after the
defendant failed to raise the claim on direct appeal). Since this issue was
available to Appellant on direct appeal, and he failed to raise it, the PCRA court
correctly determined that it was waived.
Furthermore, we agree with the PCRA court that even if Appellant had
raised this issue in the context of a claim of ineffective assistance of direct
appeal counsel, he would not be entitled to relief because the claim was
meritless:
[A]ppellant’s allegations of misconduct levied against both
the Philadelphia District Attorney’s Office and the Philadelphia
Police Department contain nothing other than bald allegations
with no factual or other basis for his allegations of misconduct.
Moreover, [A]ppellant argued a motion to suppress the victims’
identifications of the [A]ppellant through photo arrays and police
lineups during [pre-trial.] [At the ensuing hearing,] the police
officers testified as [to] the conditions surrounding the lineups and
use of photo arrays. During this hearing, the record reflects that
the detectives who conducted the lineups and photo arrays
testified credibly and without any bias or indication of any
illegality.
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Therefore, as [A]ppellant’s petition fails to set forth any
specific allegations of misconduct or to provide any factual basis
for his assertion of prosecutorial misconduct, and, his failure to
raise the issue previously, his claim has no merit and must fail.
PCRA Court Opinion, 10/15/20, at 7-8. Since, Appellant has failed to plead
and prove sufficient facts to substantiate his claim of prosecutorial
misconduct, his second claim fails. See Pa.R.Crim.P. 902(a)(12).
Finally, Appellant argues that the PCRA court erred when it denied his
request for an evidentiary hearing. See Appellant’s brief at 32-33. Appellant
asserts that he put forth material facts that entitled him to a hearing, but fails
to identify any specific details that would warrant a hearing. Id. Instead, he
baldly asserts that the PCRA court’s failure to grant him a hearing was
“incomprehensible in light of applicable decisional law” and that we should
order the PCRA court to recuse on remand for a hearing in a new PCRA court.
Id. at 33. We are unpersuaded by Appellant’s boilerplate allegation.
It is well-settled that “[t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008).
In order “to obtain reversal of a PCRA court’s decision to dismiss a petition
without a hearing, an appellant must show that he raised a genuine issue of
fact which, if resolved in his favor, would have entitled him to relief, or that
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the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Appellant’s inadequate argument has done nothing to refute the PCRA
court’s conclusion that a PCRA hearing was unnecessary. See
Commonwealth v. Watkins, 108 A.3d 692, 735 (Pa. 2014) (concluding that
if an appellant makes no attempt to identify specifically the “legitimate
material factual disputes” that he alleges warranted a hearing, as well as
develop relevant argument, his “claim of PCRA court procedural error cannot
succeed”); see also Jones, supra at 290 (rejecting an appellant’s assertion
that his other claims warranted a hearing when he failed both to identify and
argue with specificity what factual issues remained in contention). Instead,
Appellant appears to be attempting to utilize the requested hearing as a
vehicle to obtain evidence that may support his speculative claims of
ineffectiveness or prosecutorial misconduct. This, he cannot do. See
Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012) (“PCRA hearings
are not discovery expeditions; rather, they are conducted when necessary to
offer the petitioner an opportunity to prove that which he has already
asserted, and only when his proffer establishes a colorable claim about which
there remains a material issue of fact.”).
Accordingly, we cannot conclude that the PCRA court’s denial of an
evidentiary hearing was an abuse of discretion. See Hanible, supra at 452-
53 (“Appellant has failed to satisfy [his] burden as his reliance on speculation
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and failure to assert facts, which, if believed, would support his claim cannot
be equated with a genuine issue concerning a material fact that warrants an
evidentiary hearing.”).
Based on the foregoing discussion, we discern no abuse of discretion or
error of law in the PCRA court’s denial of Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2021
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