Com. v. Guilford, S. ( 2021 )

J-A15011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN GUILFORD :
:
Appellant : No. 1951 EDA 2020
Appeal from the PCRA Order Entered September 14, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003279-2012
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 10, 2021
Steven Guilford appeals from the order that denied his petition filed
pursuant to the Post-Conviction Relief Act (“PCRA”). Also before us is Daniel
A. Alvarez, Esquire’s application to withdraw as counsel. After careful review,
we affirm.
The trial court recounted the facts as follows:
On January 1, 2012, at approximately 2[:00 a.m.,], Officer
[Pablo] Rivera and Officer DeJesus1 were finishing up with a
disturbance at the Blue Moon Hotel located at 5105 Westminster
Avenue in Philadelphia, Pennsylvania. As the two police officers
were exiting the hotel, facing [s]outhbound from Westminster
Avenue, they observed three African American males across a
park walking northbound on Ramsey Street. One of the males,
who[m] Officer Rivera described as “taller with a black baseball
hat and facial hair,” was walking with his right hand in the air,
discharging a firearm. Officer Rivera stated that the other two
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1 Officer DeJesus’s first name does not appear in the certified record.
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males were smaller, clean shaven, and were not wearing baseball
hats.
When the police officers observed the incident, they were standing
on the steps of the hotel, which were elevated about [four] feet
from the sidewalk. Officer Rivera stated that the park lights were
on at the time, as well as street lamps. He explained that he knew
the taller male with the facial hair and baseball hat was shooting
the gun because “he heard the sounds and could see the muzzle
flashes.” Immediately after they observed the incident, both
officers got into their patrol car and drove around to 400 Ramsey
Street. Upon [the officers] exiting the patrol car, the two shorter
males instantly put their hands up and went to a fence. Officer
Rivera requested that [Appellant] put his hands up, but instead
he started walking backwards about five feet with his hands to his
back, and then quickly ran to the park. Officer Rivera attempted
to chase Appellant to the 4900 block of Reno Street, which was
full of abandoned buildings, foliage, debris, fencing and clutter,
but was unable to locate Appellant. Instead, he heard noises,
“such as stepping on tree branches and leaves.”
At that time, in response to Officer Rivera’s radio call, other
officers arrived at the scene and they contained the area, set up
a perimeter and called the K-9 unit. After the K-9 unit arrived,
they found Appellant rolled up in an orange construction fence
near 4944 Reno Street. Once they pulled the dog off of Appellant,
the officers placed him in handcuffs and walked him out of the
alley to where Officers Rivera and DeJesus were waiting. They
immediately identified Appellant as the male who was firing the
handgun. Although police attempted to search the alley for the
firearm, “there was so much trash that it was almost impossible
to find anything.” Southwest Detectives attempted to search the
alley again at 8[:00 a.m.], but were unable to recover the firearm.
Detective [James] Horn from Southwest Detectives did, however,
recover seven 9-millimeter fired cartridge casings from the scene.
The Firearm Identification Unit (“FIU”) report indicated that of the
seven cartridge casings that were found, six of them were
crushed/dented. Detective Horn testified that this was not
unusual, as casings were often crushed/dented by cars before
they are able to hold the scene. The FIU report also indicated,
and defense counsel stipulated that Appellant is ineligible to carry
or possess a firearm under 18 Pa.C.S. § 6105(b).
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Trial Court Opinion, 1/17/18, at 1-3 (citations omitted).
Appellant was arrested and charged with possession of a firearm
prohibited, carrying a firearm in public in Philadelphia, carrying a firearm
without a license, possession of an instrument of crime (“PIC”), and recklessly
endangering another person (REAP). After waiving his right to a jury trial,
Appellant proceeded to a bench trial where he was convicted of all charges
except for carrying a firearm without a license. On June 23, 2014, the trial
court imposed an aggregate sentence of six to twelve years of incarceration.
Appellant filed a timely post-sentence motion arguing that the “weight
of this evidence was insufficient to sustain a verdict of guilty due to the lack
of corroborating evidence to bolster Officer Rivera’s inherently unreliable
identification of [Appellant].” See Post-Sentence Motion, 6/27/14, at
unnumbered 2. The motion was denied by operation of law. After his
appellate rights were reinstated nunc pro tunc, Appellant filed a timely notice
of appeal.
In his Pa.R.A.P. 1925(b) statement Appellant maintained that the
evidence was insufficient to support all of the verdicts, that the verdict was
against the weight of the evidence, and that he received an excessive
sentence. See Concise Statement, 5/22/17, at unnumbered 1-2. However,
Appellant only pursued his weight claim on direct appeal. See
Commonwealth v. Guilford, 203 A.3d 290 (Pa.Super. 2018) (unpublished
memorandum). Specifically, Appellant argued that the police identification of
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him was unreliable and the gun was never recovered. Id. On December 4,
2018, we affirmed the trial court’s judgment of sentence. Id. Appellant did
not pursue a petition for allowance of appeal before our Supreme Court.
Appellant filed a timely pro se PCRA petition, claiming that exculpatory
evidence unavailable at the time of his trial had subsequently become
available, and that the new evidence would have changed the outcome of his
trial if it had been introduced. The alleged exculpatory evidence was that “no
gun was found.” See PCRA petition, 10/21/19, at 3. Appellant purported that
because no gun was recovered, the evidence was insufficient to convict him.
Id. at 4.
Appointed counsel filed a Turner/Finley2 letter, indicating that he had
reviewed Appellant’s file, the notes of testimony, and appellate pleadings.
See Turner/Finley Letter, 1/29/20, at 1. Based upon this review, counsel
stated that Appellant wished to raise two claims: 1) that the evidence was
insufficient to convict him of all charges since no firearm was recovered, and
2) that the guilty verdicts were against the weight of the evidence since the
evidence established that Appellant never possessed a firearm. See
Turner/Finley Letter, 1/29/20, at 4. While Appellant claimed that he had
discovered new evidence in his pro se petition, the substance of his argument
attacked the sufficiency and weight of the evidence and counsel had been
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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unable to identify any new exculpatory evidence. Id. at 4-5. PCRA counsel
gave explanations of why each issue was meritless. Id. at 4-6. Accordingly,
counsel served his letter on Appellant and sought leave to withdraw from the
case. Id. at Appendix A; see also Motion to Withdraw as Counsel, 1/29/20.
The PCRA court issued Pa.R.Crim.P. 907 notice of its intention to dismiss
the petition, indicating that it agreed with PCRA counsel’s assessment that the
issues raised in Appellant’s PCRA petition lacked merit. See Rule 907 Notice,
1/31/20. Appellant did not file a response and the PCRA court denied the
petition.3 While the Court wrote that Appellant had the right to retain private
counsel or proceed pro se on appeal, the court never entered an order
permitting counsel to withdraw. See Order, 3/13/20; see also Order,
9/14/20. Accordingly, counsel continued to represent Appellant and timely
filed a requested notice of appeal. The PCRA court and Appellant both
complied with the mandates of Pa.R.A.P. 1925(b).
In this court, in lieu of an advocate’s brief, counsel filed a petition to
withdraw and a no-merit letter pursuant to Turner and Finley. Before we
consider the merits of the issues raised on appeal, we must first determine
whether counsel followed the required procedure, which we have summarized
as follows.
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3For unknown reasons two orders denying the PCRA petition and advising
Appellant of his appellate rights appear in the record. See Order, 3/13/20;
see also Order, 9/14/20.
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Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing the
issues which the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting permission
to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate’s brief.
However, where counsel submits a petition and no-merit letter
that do satisfy the technical demands of Turner/Finley, the
court—trial court or this Court—must then conduct its own review
of the merits of the case. If the court agrees with counsel that
the claims are without merit, the court will permit counsel to
withdraw and deny relief. By contrast, if the claims appear to
have merit, the court will deny counsel’s request and grant relief,
or at least instruct counsel to file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (cleaned
up).
We are satisfied from the review of counsel’s application and no-merit
letter that counsel has substantially complied with the technical requirements
of Turner and Finley. Counsel has detailed his review of the case and the
issues Appellant wishes to raise, and explained why those issues lack merit
with citation to authority where appropriate. Counsel has also sent a copy to
Appellant and advised him of his immediate right to proceed pro se or with
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hired counsel.4 Accordingly, we proceed to consider the substance of the
appeal.
We begin with a review of the applicable law. “This Court’s standard of
review regarding an order denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 357 (Pa.Super.
2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA
court erred and that relief is due.” Commonwealth v. Stansbury, 219 A.3d
157, 161 (Pa.Super. 2019).
In his Turner/Finley letter, counsel addresses the following two issues,
which Appellant wished to raise:
1. The evidence was insufficient to convict Appellant of all the
charges as no firearm was ever recovered to prove he
possessed and fired a firearm.
2. The guilty verdicts were against the weight of the evidence
as the evidence established that Appellant never possessed
any firearm and therefore never fired any firearm.
Turner/Finley Letter at 5. The PCRA court concluded that Appellant had
failed to raise a cognizable claim under the PCRA, since the first claim was
waived and the second one was previously litigated. See PCRA Court Opinion,
12/4/20, at 4-9. Alternatively, the court concluded that both claims lacked
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4 Appellant did not file a response to counsel’s petition.
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merit. Id. The record supports the PCRA court’s findings for the reasons that
follow.
In order to be eligible for relief, a petitioner must establish by a
preponderance of the evidence that his conviction or sentence resulted from
one or more of the enumerated defects found in 42 Pa.C.S. § 9543(a)(2) 5,
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5 That statute provides as follows:
§ 9543. Eligibility for relief
(a) General rule. – To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:
....
(2) That the conviction or sentence resulted from one or
more of the following:
(i) a violation of the Constitution of this
Commonwealth or the Constitution or laws of the
United States which, in the circumstances of the
particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement
caused the petitioner to plead guilty and the petitioner
is innocent.
(Footnote Continued Next Page)
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and that the allegation has not been previously litigated or waived. See 42
Pa.C.S. § 9543(a)(3). A claim is previously litigated under the PCRA if the
highest appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue. See 42 Pa.C.S.
§ 9544(a)(2). An allegation is deemed waived “if the petitioner could have
raised it but failed to do so before trial, at trial, on appeal or in a prior state
post-conviction proceeding.” 42 Pa.C.S. § 9544(b).
Herein, Appellant’s challenge to the weight of the evidence was raised
on direct appeal and rejected by this Court. To be precise, Appellant
challenged the weight of the evidence on the grounds that Officer Rivera’s
identification of him was unreliable, and that since no gun was recovered,
there was no evidence linking Appellant to any firearm. See Guilford, supra.
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(iv) The improper obstruction by government officials
of the petitioner’s right of appeal where a meritorious
appealable issue existed and was properly preserve
din the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and would have changed the outcome of the
trial if it had been introduced.
(vii) The imposition of a sentence greater than the
lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S. § 9543(a)(2).
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We considered and denied this claim on the merits. Id. The same claim,
raised again in the instant appeal, is not reviewable since Appellant cannot
obtain post-conviction review of claims previously litigated on appeal. See 42
Pa.C.S. § 9544(a)(2).
We next turn to Appellant’s claim that the evidence was insufficient to
convict him since no firearm was ever recovered. This issue was also available
to Appellant on direct appeal. In fact, Appellant raised it in his concise
statement, but did not pursue the issue in this Court. Accordingly, this claim
is waived. See Commonwealth v. Brown, 872 A.2d 1139, 1146-48 (Pa.
2005) (stating that claims available on direct appeal are waived for purposes
of PCRA review and this waiver cannot be overcome, absent a full, layered
ineffectiveness of counsel analysis); see also 42 Pa.C.S. § 9544(b).
Finally, even if Appellant had raised these issues in the context of a
claim of ineffective assistance of direct appeal counsel, he would not be
entitled to relief. Instead, we would agree with the PCRA court’s well-
reasoned analysis that the weight and sufficiency claims were meritless. See
PCRA Opinion, 12/4/20, at 7-8 (setting forth the relevant precedent regarding
weight of the evidence issues and explaining why Appellant’s conviction did
not shock the court’s conscience); id. at 8-9 (reiterating the case law
governing sufficiency appeals and citing to relevant case law to support its
finding that the evidence was sufficient to uphold the convictions); see also
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Commonwealth v. Spotz, 896 A.2d 1191, 1214 (Pa. 2006) (“[C]ounsel will
not be deemed ineffective for failing to raise a meritless claim[.]”).
The PCRA court, sitting as the trial court, credited Officer Rivera’s
testimony that he observed Appellant raise a firearm over his head and
discharge it, as was its prerogative. Id. at 8; see also Commonwealth v.
Flor, 998 A.2d 606, 626 (Pa. 2010) (reaffirming the jury is entitled “to believe
all, part, or none of the evidence, and credibility determinations rest solely
within the purview of the fact-finder”). Further, the fact that the firearm was
not recovered is of no moment. See Commonwealth v. Robinson, 817 A.2d
1153, 1162 (Pa.Super. 2003) (finding the evidence sufficient to sustain a
conviction for a violation of the Uniform Firearms Act where no firearm was
recovered. The fact, that the victim observed Appellant holding a firearm was
“all that [was] necessary”). Accordingly, as we agree with counsel that the
claims Appellant wishes to raise are either raised or previously litigated, we
permit counsel to withdraw and deny relief.
Petition of Daniel A. Alvarez, Esquire, for leave to withdraw is granted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2021
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