Com. v. Copeland, J.

J-S34021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES COPELAND
Appellant No. 172 EDA 2016
Appeal from the PCRA Order Dated December 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1007631-1999
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 16, 2017
Appellant, James Copeland, appeals pro se from the order denying his
petition filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541–9546. We affirm.
In a prior appeal, we summarized the procedural background of this
case as follows:
Appellant’s first jury trial occurred in 2000, but that jury was
unable to reach a verdict. His second trial was held in 2002, and
that jury found Appellant guilty of two counts of first degree
murder and one count of carrying a firearm without a license. In
2006, however, this Court vacated Appellant’s sentence and
reversed his convictions due to an erroneous jury instruction on
alibi. Appellant was then tried for a third time in 2011.
Following his third trial, the subject of the instant appeal,
Appellant was again convicted of two counts of first degree
murder and one count of carrying a firearm without a license.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S34021-17
The trial court sentenced Appellant to two consecutive life terms
of imprisonment and no further penalty for the firearm
conviction.
Commonwealth v. Copeland, 81 A.3d 75 (Pa. Super. 2013) (unpublished
memorandum at 1). This Court affirmed Appellant’s judgment of sentence.
Id. Appellant sought relief with the Pennsylvania Supreme Court, but his
petition for allowance of appeal was denied on December 18, 2013.
Commonwealth v. Copeland, 82 A.3d 1053 (Pa. 2013).
On April 22, 2014, Appellant filed the underlying PCRA petition pro se.1
The PCRA court appointed counsel on January 15, 2015. Counsel filed a
Turner/Finley2 no-merit letter on June 5, 2015, along with a motion to
withdraw as counsel. On July 20, 2015, Appellant filed a pro se
“Opposition/Response to Finley Letter”; on September 10, 2015, Appellant
filed a pro se amended PCRA petition. On September 16, 2015, the PCRA
Court issued notice of its intent to dismiss Appellant’s petition pursuant to
Pa.R.Crim.P. 907. On September 26, 2015, Appellant filed a pro se
response, amended PCRA petition, and “Objection to Counsel’s Finley
Letter.” Appellant’s counsel filed a response to Appellant’s pro se amended
____________________________________________
1
Appellant’s petition was timely because it was filed within a year of his
sentence becoming final. See 42 Pa.C.S. § 9545(b). Appellant’s sentence
became final on March 18, 2014, when the 90-day period for filing a writ of
certiorari with the United States Supreme Court expired. See U.S. Sup. Ct.
R. 13. Therefore, Appellant had until March 18, 2015 to file a timely PCRA
petition.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Finley v.
Pennsylvania, 550 A.2d 213 (1987) (en banc).
-2-
J-S34021-17
PCRA petition on November 6, 2015. On November 19, 2015, the PCRA
court filed another notice of intent to dismiss Appellant’s petition pursuant to
Pa.R.Crim.P. 907. On November 30, 2015, Appellant filed a pro se
“Objection and Counterstatement to the Court’s Notice of Intent to Dismiss
Pursuant to Pennsylvania Rules of Criminal Procedure 907 with an
Addendum to Amend, Raise and Incorporate Prejudice and Cumulative Error
into Original PCRA.” On December 18, 2015, the PCRA court dismissed
Appellant’s PCRA petition and granted counsel’s motion to withdraw.
Appellant, acting pro se, filed this timely appeal.
Appellant presents four claims of trial counsel’s ineffectiveness:
1. Appellant was denied effective assistance of counsel, as
guaranteed under the U.S. and Pennsylvania Constitutions,
when trial counsel failed to object after the trial judge was
substituted before a verdict was recorded; thus violating
Pa.R.Crim.P. 601, Presence of Judge, law of case doctrine,
and the coordinate jurisdiction rule.
2. Appellant was denied effective assistance of counsel, as
guaranteed under the U.S. and Pennsylvania Constitutions,
when trial counsel failed to object to inadmissible testimonial
hearsay in the form of autopsy reports testified to by the
Commonwealth’s medical examiner, inadmissible fabricated
ballistics evidence, and the testimony of Dereck Cary who was
incarcerated at the time of the events he testified about,
therefore he could not have witnessed the events he states he
saw.
3. Appellant was denied effective assistance of counsel, as
guaranteed under the U.S. and Pennsylvania Constitutions,
when trial counsel failed to object after the trial judge
neglected to instruct the jurors about the use of a written
charge, in violation of Pa.R.Crim.P. 646, Materials Permitted
in Possession of Jurors.
-3-
J-S34021-17
4. Appellant was denied effective assistance of counsel, as
guaranteed under the U.S. and Pennsylvania Constitutions,
when trial counsel erred in advising [A]ppellant not to take
the stand.
Appellant’s Brief at 3-4.
In reviewing the propriety of the PCRA court’s order denying Appellant
relief, we are limited to ascertaining whether the evidence supports the
determination of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002), appeal
denied, 808 A.2d 571 (Pa. 2002). We defer to the findings of the PCRA
court, which will not be disturbed unless they have no support in the
certified record. Id. In addition, to be entitled to relief under the PCRA,
Appellant must plead and prove by a preponderance of the evidence that the
conviction or sentence arose from one or more of the errors enumerated in
Section 9543(a)(2) of the PCRA. One such error is “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii).
Instantly, all four of Appellant’s issues challenge the effectiveness of
trial counsel. The law presumes trial counsel has rendered effective
assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.
2010). The burden of demonstrating ineffectiveness rests on Appellant as
the petitioner. Id. To satisfy this burden, the petitioner must plead and
prove that: (1) the underlying claim is of arguable merit; (2) counsel lacked
-4-
J-S34021-17
a reasonable basis for taking the actions that are claimed to have been
ineffective; and (3) the ineffectiveness of counsel caused petitioner
prejudice. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
To demonstrate prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Commonwealth v.
King, 57 A.3d 607, 613 (Pa. 2012) (quotation marks and citation omitted).
If a petitioner fails to prove by a preponderance of the evidence any of the
Pierce prongs, the court need not address the remaining prongs.
Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009),
appeal denied, 990 A.2d 727 (Pa. 2010). Where the underlying claim is
meritless, “the derivative claim of ineffective assistance of counsel for failing
to object has no arguable merit.” Commonwealth v. Spotz, 47 A.3d 63,
122 (Pa. 2012). “[C]ounsel cannot be considered ineffective for failing to
pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d 485, 495
(Pa. 1999), cert. denied, 530 U.S. 1206 (2000).
Consistent with the foregoing legal authority, we have reviewed the
record and conclude that Appellant’s claims of trial counsel ineffectiveness
do not warrant relief. The Honorable Steven R. Geroff, sitting as the PCRA
court, has ably addressed Appellant’s four claims, referencing prevailing
statutory and case law, as well as the evidence presented at trial. The PCRA
court explained: (1) although substitution of the trial judge during jury
-5-
J-S34021-17
deliberations occurred in violation of Pa.R.Crim.P. 601, Appellant was not
prejudiced3; (2) there is no arguable merit to Appellant’s claims regarding
the admission of testimony from Dr. Gulino, the Chief Medical Examiner for
the City and County of Philadelphia, the ballistics evidence from Detective
John Finor, and previously recorded testimony of Derrick Cary; (3) Appellant
was not prejudiced by trial counsel’s failure to object when the trial court did
not follow Pa.R.Crim.P. 646 and instruct the jurors about materials they
were permitted to possess; and (4) trial counsel had a reasonable basis for
advising Appellant not to testify on his own behalf due to impeachment
concerns, and Appellant was not prejudiced by his failure to testify because
____________________________________________
3
This is the first issue presented in Appellant’s brief, yet he did not raise it
until he filed his pro se amended PCRA petition on September 10, 2015. In
response to the filing, PCRA counsel noted, “petitioner is not entitled to
review of this claim because he did not seek or obtain permission to file an
amended petition. See Pa.R.Crim.P. 905; Commonwealth v. Rykard, 55
A.3d 1177, 1192 (Pa. Super. 2012).” PCRA Counsel’s Response, 11/6/15, at
1, n1. PCRA counsel also stated:
Although it is clear that [Rule 601] was violated . . .
[Appellant] is not entitled to any relief because he did not and
cannot prove that it is likely that a different verdict would have
resulted had trial counsel proffered an objection. . . . Because
the jury was given information it earlier had been exposed to
[the jury was provided with portions of two witnesses’ police
statements that previously had been introduced into evidence],
no prejudice occurred. This is especially so because [Appellant]
has not shown that the jury was unduly influenced by the
statements and the Superior Court noted in its opinion affirming
the judgment of sentence [that] the evidence was more than
sufficient to support the verdict.
Id. at 2.
-6-
J-S34021-17
his alibi evidence was presented through another witness. Accordingly, we
adopt the PCRA court’s opinion in affirming the order denying Appellant
post-conviction relief. The parties are instructed to attach a copy of the
June 21, 2016 opinion to any future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
-7-
Circulated 07/24/2017 02:38 PM