Com. v. Stokes, J. ( 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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
Appellee :
:
v. :
:
JOSHUA STOKES, :
:
Appellant : No. 1240 EDA 2019
Appeal from the PCRA Order Entered January 24, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008090-2010
BEFORE: LAZARUS, J., KUNSELMAN, J. and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 15, 2021
Appellant, Joshua Stokes, appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm
in part, vacate in part, and remand for proceedings consistent with this
memorandum.
This Court previously summarized the relevant facts and procedural
history of this case. See Commonwealth v. Stokes, 159 A.3d 1015 (Pa.
Super. 2016) (unpublished memorandum at 1–3). Briefly, on May 3, 2010,
Appellant and another individual shot at Philip Riddick as Riddick drove away
in a vehicle. Approximately one week later, Riddick’s girlfriend, Marquita
Taylor, reported to police that Appellant had approached her outside her home
and told her that she “‘better not go to court,’ or ‘something will happen.’”
1 42 Pa.C.S. §§ 9541-9546.
*Retired Senior Judge assigned to the Superior Court.
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Id. (unpublished memorandum at 2), quoting N.T., 7/12/12, at 49–50. A jury
convicted Appellant of criminal conspiracy, aggravated assault, persons not to
possess firearms, carrying firearms without a license, possessing instruments
of crime, and intimidation of witnesses or victims. The trial court sentenced
Appellant to an aggregate term of incarceration of 35 to 70 years. No post-
sentence motions were filed.
Appellant timely filed an appeal, which this Court dismissed for failure
to file a docketing statement. Thereafter, Appellant filed a counseled petition
pursuant to the PCRA, seeking reinstatement of his right to file a direct appeal
nunc pro tunc. Following a hearing, the PCRA court granted the petition and
reinstated Appellant’s direct appeal rights nunc pro tunc. Appellant filed a
notice of appeal nunc pro tunc and this Court affirmed Appellant’s judgment
of sentence.2 On May 23, 2017, our Supreme Court denied Appellant’s petition
for allowance of appeal. Commonwealth v. Stokes, 169 A.3d 540 (Pa.
2017).
On February 6, 2018, Appellant timely filed this pro se petition pursuant
to the PCRA, raising claims of ineffective assistance of trial and appellate
counsel. The PCRA court appointed counsel, who filed an amended PCRA
petition on June 19, 2018. Among other things, Appellant argued that trial
counsel was ineffective for failing to object to the Commonwealth’s closing
2 Appellant challenged, inter alia, the discretionary aspects of his sentence.
Because Appellant failed to preserve the issue at sentencing or in a post-
sentence motion, this Court found it waived. Stokes, 159 A.3d 1015.
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argument and failing to file a requested post-sentence motion. As a result,
Appellant sought reinstatement of his post-sentence motion rights nunc pro
tunc. On November 28, 2018, the Commonwealth filed a motion to dismiss.
On January 24, 2019, the PCRA court dismissed Appellant’s PCRA petition
without a hearing.3
This timely filed notice of appeal followed.4 Appellant raises the
following issues on appeal:
1. Did the PCRA Court err by dismissing [Appellant’s] timely
Amended PCRA Petition without a hearing on the issue of
whether trial counsel was ineffective for failing to object and
move for a mistrial after the prosecutor made improper,
prejudicial remarks in her closing argument?
3 This order is listed among the docket entries but is not included in the
certified record. “[U]nder the Pennsylvania Rules of Appellate Procedure, any
document which is not part of the officially certified record is deemed non-
existent.” Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006).
This Court sua sponte inquired into the status of this order; however, the trial
court notified this Court that there is no paper order. “Where, as here, ‘the
absence [of the document] is attributable to court personnel, [the] Superior
Court shall resolve on the merits the issue raised in the
appeal.’ Commonwealth v. Barge, 560 Pa. 179, 743 A.2d 429-30 (1999).”
Commonwealth v. Maddrey, 205 A.3d 323, 325 n.4 (Pa. Super. 2019).
Because there is no question that the PCRA court dismissed the petition and
provided notice to Appellant of the dismissal, and Appellant filed a timely
notice of appeal, we may resolve Appellant’s issues on the merits.
Nonetheless, we observe that the PCRA court failed to provide Appellant
notice pursuant to Pa.R.Crim.P. 907 prior to dismissing his petition. “The
failure to challenge the absence of a Rule 907 notice constitutes
waiver.” Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013)
(citation omitted). Appellant has not challenged the PCRA court’s failure to
provide Rule 907 notice on appeal. Thus, any challenge to that error is waived.
4 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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2. Did the PCRA court err by dismissing [Appellant’s] timely
Amended PCRA Petition where a material issue of fact existed
regarding whether [Appellant] instructed his prior counsel to
file a post sentence motion for reconsideration, and said motion
was not filed, thus waiving [Appellant’s] sentencing claim?
Appellant’s Brief at 2 (suggested answers omitted).
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its decision is free of legal
error. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015);
Commonwealth v. Velazquez, 216 A.3d 1146, 1149 (Pa. Super. 2019);
Commonwealth v. Johnson, 179 A.3d 1153, 1156 (Pa. Super. 2018). To
be entitled to relief under the PCRA on a claim of ineffective assistance of
counsel, the defendant must prove: (1) that the underlying legal claim is of
arguable merit; (2) that counsel’s action or inaction had no reasonable basis
designed to effectuate his client’s interests; and (3) that he suffered prejudice
as a result of counsel’s action or inaction. Mason, 130 A.3d at 618;
Velazquez, 216 A.3d at 1149; Johnson, 179 A.3d at 1158. The defendant
must satisfy all three prongs of this test to obtain relief under the
PCRA. Mason, 130 A.3d at 618; Velazquez, 216 A.3d at 1149; Johnson,
179 A.3d at 1158.
A convicted defendant does not have an absolute right to an evidentiary
hearing on his PCRA petition. Commonwealth v. Hill, 202 A.3d 792, 797
(Pa. Super. 2019); Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.
Super. 2008).
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It is within the PCRA court’s discretion to decline to hold a hearing
if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence. It is the responsibility of
the reviewing court on appeal to examine each issue raised in the
PCRA petition in light of the record certified before it in order to
determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in
denying relief without conducting an evidentiary hearing.
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)
(citations omitted). Dismissal of a PCRA petition without a hearing is proper
where the PCRA petitioner’s factual assertions are insufficient to support a
claim for relief. Pa.R.Crim.P. 907(1); Commonwealth v. Holt, 175 A.3d
1014, 1018 (Pa. Super. 2017); see also Commonwealth v. Eichinger, 108
A.3d 821, 849 (Pa. 2014).
Appellant first argues that trial counsel rendered ineffective assistance
by failing to object to two sets of comments made by the Commonwealth
during closing arguments. First, Appellant argues that counsel should have
objected to the Commonwealth’s characterization of the victim, Riddick, as
not being the aggressor when the prosecutor stated that “he has never been
arrested in his life, never in trouble, and they know it.” Appellant’s Brief at 7,
quoting N.T., 7/19/12, at 65. Second, Appellant argues that counsel should
have objected to the Commonwealth’s insinuation that Appellant had a prior
record based on the following statements:
[T]he defense is asking you to not convict the defendant
because when he was arrested, he’s telling his friends he
doesn’t know what he’s in for. Well, what else is he doing?
What else has he been doing? So he’s not sure what he’s
been arrested for this time. I don’t know. I don’t know what
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these charges are. What does that tell you about the
defendant if he’s unsure?
Id. at 7, quoting N.T., 7/19/12, at 68 (emphasis in original).
According to Appellant, the comments concerning Riddick’s lack of a
criminal record “were comments on facts outside the record and not supported
by any evidence.” Id. at 8. Appellant further argues that he was prejudiced
by these comments because the “case turned on the credibility of … Riddick”
and the comments constituted “improper bolstering.” Id. at 9. As to the
Commonwealth’s second set of comments, Appellant argues that these were
not based on any evidence of record and improperly “conveyed to the jury
that [Appellant] had committed other unrelated criminal conduct.” Id. at 10.
Stated briefly, Appellant contends these comments
destroyed [his] chance for a fair trial. On the one hand, the
prosecutor improperly vouched for the credibility of its star
witness without any evidence of record to support that statement;
and on the other hand the prosecutor told the jury that [Appellant]
was a criminal who could not be believed. [Appellant’s] trial was
unfair, and thus his underlying claim has merit. The only question
that really ought to be answered is whether trial counsel had a
reasonable basis for his failure to object to these remarks. The
only way to resolve that question is after the issue is fully litigated
at an evidentiary hearing.
Id. at 12.
We consider this claim mindful of the following.
[W]e recognize that a claim of ineffective assistance grounded in
trial counsel’s failure to object to a prosecutor’s conduct “may
succeed when the petitioner demonstrates that the prosecutor’s
actions violated a constitutionally or statutorily protected right,
such as the Fifth Amendment privilege against compulsory self-
incrimination or the Sixth Amendment right to a fair trial, or a
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constitutional interest such as due process.” Commonwealth v.
Cox, 983 A.2d 666, 685 (Pa. 2009) (quoting Commonwealth v.
Tedford, 960 A.2d 1, 29 (Pa. 2008)). “To constitute a due
process violation, the prosecutorial misconduct must be of
sufficient significance to result in the denial of the defendant’s
right to a fair trial.” Id. at 685 (quoting Greer v. Miller, 483 U.S.
756, 765 (1987) (internal quotation marks omitted)). “The
touchstone is fairness of the trial, not the culpability of the
prosecutor.” Id. Finally, “[n]ot every intemperate or improper
remark mandates the granting of a new trial;” id., “[r]eversible
error occurs only when the unavoidable effect of the challenged
comments would prejudice the jurors and form in their minds a
fixed bias and hostility toward the defendant such that the jurors
could not weigh the evidence and render a true verdict.” Id.Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (citations altered).
In its Rule 1925(a) opinion, the PCRA court concluded that the
underlying claim lacked merit. Specifically, the PCRA court noted that in the
first set of comments, “[t]he District Attorney never said [Riddick] was
incapable of lying. She was merely commenting on the defense witnesses’
characterization of the complainant.” PCRA Court Opinion, 12/4/20, at 3
(unnumbered). As to the second set of comments, the court noted that it was
“in response to [t]rial [c]ounsel’s argument” and based on “taped prison calls
which were introduced at trial.” Id.Upon review of the certified record, Appellant’s argument that the
comments concerning Riddick were not based on evidence of record is belied
by Riddick’s trial testimony, wherein he specifically stated that he had never
been in trouble or arrested. N.T., 7/9/12, at 75. Thus, the PCRA court did
not err in dismissing this portion of the claim without a hearing because the
underlying claim is without merit.
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As to Appellant’s challenge regarding the second set of comments, we
conclude that Appellant’s claim is not patently frivolous and without support
in the record. First, although the PCRA court concluded the comments were
based on the prison phone calls introduced at trial, we cannot determine
whether the record supports the PCRA court’s conclusion because the
transcripts of those calls do not appear in the certified record. Second,
although the PCRA court concluded that the comments were a fair response
to Appellant’s closing argument and therefore Appellant’s claim had no merit,
the PCRA court did not reference which portion of Appellant’s closing argument
it concluded prompted the response or offer any analysis as to how it reached
that conclusion. We make no determination as to whether Appellant is
ultimately entitled to relief on his claim that counsel was ineffective for failing
to object to statements in the Commonwealth’s closing argument concerning
Appellant’s knowledge of why he was arrested. However, we conclude that
Appellant has set forth sufficient facts to warrant an evidentiary hearing on
this claim. Accordingly, the PCRA court erred in dismissing that portion of his
claim without a hearing.
Turning to Appellant’s second claim, he argues that trial counsel was
ineffective for failing to file a post-sentence motion for reconsideration,
despite Appellant’s instructing counsel to file such a motion. Appellant’s Brief
at 12. According to Appellant, if he instructed counsel to file a post-sentence
motion and counsel failed to do so, “then prejudice is presumed because
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counsel’s failure caused [Appellant] to lose his right to appeal his sentence.”
Id. at 12–13. As noted, Appellant sought reinstatement of his post-sentence
motion rights nunc pro tunc. See Amended PCRA Petition, 6/19/18, at ¶8.
For purposes of 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 postconviction proceeding.” 42 Pa.C.S. § 9544(b).
As detailed supra, Appellant filed a prior PCRA petition seeking reinstatement
of his direct appeal rights nunc pro tunc following this Court’s dismissal of his
first appeal for failure to file a docketing statement. Counsel was appointed,
who filed an amended petition alleging trial counsel’s ineffectiveness for failing
to file a docketing statement and seeking reinstatement of Appellant’s direct
appeal rights nunc pro tunc. Appellant had the opportunity in that petition
to allege trial counsel’s ineffectiveness for failing to file a requested post-
sentence motion and to seek reinstatement of his post-sentence motion
rights nunc pro tunc, instead of only his direct appeal rights. Appellant failed
to do so. Accordingly, because it is waived, the PCRA court did not err in
dismissing this claim.
Based on the foregoing, we affirm the PCRA court’s order in part and
vacate in part. We vacate the portion of the order dismissing without a
hearing Appellant’s claim that counsel was ineffective for failing to object to
the Commonwealth’s closing argument statements concerning Appellant’s
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knowledge of why he was arrested and remand for an evidentiary hearing on
that claim. We affirm the PCRA court’s order in all other respects.
Order affirmed in part and vacated in part. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2021
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