Com. v. Ingram, J.

J-S25011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN DANIEL INGRAM,
Appellant No. 1262 EDA 2016
Appeal from the PCRA Order Entered April 7, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001698-2012
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 07, 2017
Appellant, Jonathan Daniel Ingram, appeals pro se from the post-
conviction court’s April 7, 2016 order denying his second petition filed under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
careful review, we affirm.
We briefly summarize the facts underlying Appellant’s convictions, as
follows:
Detective Matthew Rowles of the Upper Darby Police
Department was acting as the “on call investigator” on
December 24, 2011. Sometime between 1:00 a.m. and 2:00
a.m.[,] he responded to [a] call to 2366 Hyland Avenue in Upper
Darby to investigate a home invasion and stabbing that had
occurred minutes before the call. While en route[,] Detective
Rowles received a radio transmission advising him that the
Lansdowne Police had taken a suspect into custody. [Appellant],
who matched the description given by one of the victims - a
white male with long red hair wearing a dark sweatshirt and
jeans -was intercepted while climbing over a wall from Arlington
Cemetery onto School Lane in Upper Darby. Arlington Cemetery
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is adjacent to 2366 Hyland Avenue. This residence is a three
bedroom row home. The stabbing victim, Jennifer Hoban, lives
in the residence with her boyfriend, John Miller, and her two
daughters.
At about 1:56 a.m. on December 24, 2011[,] Ms. Hoban,
her daughters and Mr. Miller were at home. While in their
bedroom Ms. Hoban and Mr. Miller heard a noise in the house.
Ms. Hoban went to check on one of her daughters and came
upon a man with long red hair standing next to the door to her
daughter’s bedroom. The bathroom light was on and Ms. Hoban
stood only a few feet from the man and started screaming. He
came at her with a knife and stabbed her several times as she
struggled with him. Mr. Miller heard Ms. Hoban screaming. He
jumped from his bed and turned the bedroom light on. He ran
into the hall and saw a man with two knives attacking Ms.
Hoban. As Mr. Miller yelled, the man ran off; Mr. Miller chased
him down the stairs, through the kitchen, and out of the back
door. The stabbing took place in the upstairs hall outside the
master bedroom. In the hallway[,] Mr. Miller stood about an
arm’s length from the intruder.
[Appellant] was detained at the School Lane location.
While the stabbing victim was transported to the University of
Pennsylvania Hospital, her boyfriend John Miller, was brought to
School Lane by Detective Rowles in the rear seat of his police
vehicle. When Detective Rowles and Mr. Miller arrived,
[Appellant] was standing in the light of the police vehicle
spotlight. He was handcuffed. Immediately upon his arrival and
without any discussion, Mr. Miller said, “That’s him. That’s the
guy that was in my house. That’s the guy that stabbed Jen.”
Detective Rowles asked Mr. Miller “how sure was he” and Mr.
Miller replied that he was “100%” sure. No more than twenty
minutes had passed between the stabbing and Mr. Miller’s
identification.
PCRA Court Opinion (PCO), 6/6/16, at 7-8 (quoting Trial Court Opinion,
10/10/13, at 3-4) (citations to the record and footnote omitted).
After a jury trial, Appellant was convicted of two counts of aggravated
assault, burglary, and possessing an instrument of crime. He was initially
sentenced on March 26, 2013, to an aggregate term of 14 to 28 years’
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incarceration, followed by 14 years’ probation. He filed a timely direct
appeal, and this Court vacated his sentence, and remanded for resentencing,
for reasons irrelevant to the present appeal. See Commonwealth v.
Ingram, 102 A.3d 518 (Pa. Super. 2014) (unpublished memorandum). On
June 10, 2014, the trial court resentenced Appellant to a term of 15¼ to
30½ years’ incarceration, followed by 14 years’ probation. Appellant filed
another timely appeal, and this Court affirmed Appellant’s judgment of
sentence on February 6, 2015. See Commonwealth v. Ingram, 120 A.3d
371 (Pa. Super. 2015) (unpublished memorandum). Appellant did not file a
petition for allowance of appeal with our Supreme Court.
On February 26, 2015, Appellant filed a timely, pro se PCRA petition.
Because it was [his] first PCRA petition, counsel was appointed
to represent him. The pro se petition alleged that trial counsel
provided ineffective assistance due to his failure to conduct an
investigation into [Appellant’s] whereabouts during the time of
the home invasion, failure to challenge the identification that
took place at the location of his arrest[,] and failure to secure
DNA evidence and/or expert testimony to present at trial.
Additionally, he alleged that the aggravated assault victim’s in-
court identification was impermissibly tainted. On September
29, 2015[,] appointed counsel filed an application to withdraw
along with a [Turner/]Finley[1] “no merit” letter. After an
independent review of the record[,] counsel’s petition was
granted and [Appellant] was given notice of the court’s intent to
dismiss the petition without a hearing.
On October 20, 2015[, Appellant] filed several motions
including a “Motion to Proceed Without Counsel,” a motion for
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1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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[In Forma Pauperis] status, a motion for an extension of time in
which to respond to the Notice of Intent to Dismiss and a
discovery motion. These motions were disposed of in an Order
entered on October 22, 2015. [Appellant] was granted an
extension of time in which to respond to the Notice and on
November 18, 2015[, Appellant’s] “[R]esponse to Motion to
Dismiss” was filed. The response alleged that in a plethora of
areas trial counsel failed to investigate [Appellant’s] case,
resulting in his unjust conviction and subsequent incarceration.
He alleged additionally, that appointed PCRA counsel failed to
discuss pertinent issues relating to his case, thereby also
providing ineffective assistance.
On November 19, 2015[,] the PCRA petition was
dismissed. [Appellant] filed a timely Notice of Appeal. In an
Order entered on December 10, 2015[, Appellant] was directed
to file a Concise Statement of Errors Complained of on Appeal.
[Appellant] did not file a Rule 1925(b) Statement. On December
23, 2015[, Appellant] filed a “Motion to Withdraw PCRA and
Appeal.” This motion was dismissed on January 6, 2016[,]
because the matter was within the Superior Court’s jurisdiction.
On January 20, 2016[,] the PCRA court filed an Opinion in
support of the decision dismissing [Appellant’s] first PCRA
petition.
On January 25, 2016[,] an Order [hereinafter, “Dismissal
Order”] withdrawing [Appellant’s] existing appeal was entered in
the Superior Court. The [dismissal] order states that the appeal
was withdrawn at [Appellant’s] request and that “Appellant shall
be permitted to apply for relief in the Court of Common Pleas via
the [PCRA]….”
The PCRA petition [underlying the present appeal] was
filed on February 29, 2016. The petition raises claims of PCRA
counsel’s ineffective assistance. Specifically, it is alleged that
PCRA counsel provided ineffective assistance for failing to raise
claims that trial counsel was ineffective for failing to raise a
Brady[2] claim, failing to present character testimony, and failing
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2
Brady v. Maryland, 373 U.S. 83 (1963) (holding that “the suppression by
the prosecution of evidence favorable to the accused upon request violates
due process where the evidence is material to either guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution”). We note that
(Footnote Continued Next Page)
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to present the testimony of a DNA expert. On March 8, 2016[,]
an Order notifying [Appellant] of the PCRA court’s intent to
dismiss his second petition without a hearing was entered. The
court determined that the issues [Appellant] raises in this second
petition have been waived. See [42] Pa.C.S.A. §§ 9543(a)(3);
9544(b). [Appellant] responded to the court’s Notice on March
29, 2016. In this response[, Appellant] admits that he failed to
comply with the PCRA court’s Order to file a Rule 1925(b)
Statement after appealing from [the denial of] his first PCRA
petition because “it would [have] be[en] futile to file [a
statement] as the issues that would [have] be[en] raised had
not been filed in the original petition,” and that he now “raises
additional claims that the first PCRA and PCRA counsel did not in
fact raise.” He relies on the Superior Court’s [Dismissal] Order
granting [his] motion to withdraw his appeal and permitting him
to apply for PCRA relief in the Court of Common Pleas as
permission to ignore the PCRA’s explicit requirements regarding
“waiver.”
PCO at 2-4 (some footnotes and citations to the record omitted).
Ultimately, the court found unconvincing Appellant’s arguments that
his claims were not waived based on the language of this Court’s Dismissal
Order. Accordingly, the court issued an order dismissing Appellant’s petition
on April 7, 2016. He filed a timely, pro se notice of appeal. The court did
not order Appellant to file a Rule 1925(b) statement, but it issued an opinion
on June 6, 2016. Herein, Appellant raises one question for our review:
I. Whether the [PCRA] court err[ed] in dismissing Appellant’s
subsequent PCRA petition in that (1) same was timely
_______________________
(Footnote Continued)
our review of Appellant’s petition demonstrates that he framed this issue as
both a Brady violation, and as a violation of his due process rights under
Arizona v. Youngblood, 488 U.S. 51 (1988) (holding “that unless a
criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due
process of law”). See Appellant’s Pro Se PCRA Petition, 2/29/16, at 5.
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submitted, (2) same essentially “related back” to Appellant’s
original (first) PCRA petition, which had been denied, (3)
Appellant had, before filing the second/subsequent petition, …
effectively (though perhaps inarticulately) indicated that his
intention was to file the equivalent of an amended petition in
order to preserve all claims for appeal[,] and (4) both the
original and subsequent PCRA petitions … endeavored to assert
an actual innocence claim, with referral to evidence supporting
that claim and, so, the PCRA court erred in not providing
Appellant [with] the latitude to develop such claim further, with
or without the effective assistance of counsel.
Appellant’s Brief at 3 (unnecessary capitalization omitted).
Preliminarily, our standard of review regarding an order denying post-
conviction relief under the PCRA is whether the determination of the court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court
grants great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a contrary
holding. Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super.
2001).
In Appellant’s pro se brief to this Court, he presents numerous claims,
which he subsumes within one lengthy discussion that has no distinct
sections or issue headings. This makes our meaningful review of his claims
difficult, at best. From what we can glean, it seems Appellant is raising the
following claims of trial counsel’s ineffectiveness: (1) trial counsel
ineffectively failed to adequately “investigate witness statements and the
existence of exculpatory evidence,” Appellant’s Brief at 7; (2) counsel failed
to pursue Appellant’s claim that the Commonwealth violated his due process
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by “facilitat[ing]” the destruction of “video evidence” that would have aided
in his defense, id. at 7, 8 (relying on Youngblood, supra); (3) trial counsel
acted deficiently by not having a “cloth” found near the scene of the crime
“examined for DNA evidence,” id. at 11; (4) trial counsel inadequately failed
to challenge the inconsistencies in the descriptions of the perpetrator
provided by witnesses in this case, and/or stress how those descriptions
were not consistent with Appellant’s appearance, id. at 12; (5) trial counsel
acted ineffectively by not challenging the physical evidence found in this
case, id. at 13-17; and (6) trial counsel deficiently “concede[d] to
[Appellant’s] guilt[,]” rather than presenting a defense on Appellant’s behalf,
id. at 17. Additionally, throughout his discussion, Appellant makes cursory
claims that his PCRA counsel acted ineffectively. See, e.g., id. at 7
(Appellant’s claiming “he was denied effective assistance of counsel
throughout his court processes, beginning even before his trial and through
the PCRA process, by counsels’ ‘failure’ to independently investigate witness
statements and the existence of exculpatory evidence”).
We begin by addressing the PCRA court’s conclusion that Appellant has
waived both his trial counsel, and PCRA counsel, ineffectiveness claims. See
Pa.R.Crim.P. 907 Notice, 3/8/16, at 3 (notifying Appellant that the court was
denying his petition because his claims are waived); PCO at 4-5 (discussing
why Appellant’s claims are waived). On appeal, Appellant does not even
mention the PCRA court’s determination that he has waived his claims, let
alone present any meaningful challenge to that decision. Thus, on this basis
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alone, we could conclude that he has failed to demonstrate that the PCRA
court committed a legal error warranting the reversal of its order denying his
petition.
In any event, we agree with the PCRA court that Appellant’s claims are
waived. First, we address his trial counsel ineffectiveness claims. We
recognize that, in response to the PCRA court’s Rule 907 notice, Appellant
contended that his assertions of trial counsel’s ineffectiveness were not
waived in light of this Court’s Dismissal Order, wherein we stated: “Appellant
shall be permitted to apply for relief in the Court of Common Pleas via the
[PCRA]….” Per Curiam Order, 1/25/16. Appellant seemingly asserted, in his
response to the Rule 907 notice, that under the language of our Dismissal
Order, his current petition should be considered as an amendment to his first
PCRA petition.
Even had Appellant reiterated this argument herein, we would reject it.
This Court’s Dismissal Order did not vacate the order denying Appellant’s
first PCRA petition filed in February of 2015. Therefore, it is unreasonable to
read our Dismissal Order as permitting Appellant to file an amendment to a
petition which was denied by an order that we did not vacate. Rather, a
rationale interpretation of our Dismissal Order is that it informed Appellant
that he could file a second PCRA petition, and at most suggested to him that
he could raise his claims of PCRA counsel’s ineffectiveness therein. To the
extent that Appellant attempted to raise claims of trial counsel’s
ineffectiveness in his second petition filed on February 29, 2016, we agree
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with the PCRA court that such claims are waived because Appellant could
have raised them in his first petition. See 42 Pa.C.S. § 9544(b) (“For
purposes of this subchapter, an issue is waived if the petitioner could have
raised it but failed to do so before trial, during unitary review, on appeal or
in a prior state postconviction proceeding.”).
We would also agree with the PCRA court that Appellant waived his
PCRA counsel ineffectiveness claims, although not based on the same reason
as provided by the PCRA court.3 Rather, we conclude that Appellant’s PCRA
counsel ineffectiveness claims are waived due to his failure to meaningfully
develop them in his PCRA petition, or on appeal. Notably, at no point in his
petition did Appellant even mention PCRA counsel, let alone meaningfully
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3
The PCRA court concluded that Appellant waived these claims because he
raised them in response to the Rule 907 notice pertaining to his first PCRA
petition, but he then withdrew his appeal from the denial of that petition,
thus not “pursuing [his] claims of PCRA counsel’s ineffective assistance to
their conclusion….” PCO at 5. We need not examine whether the PCRA
court’s analysis is correct, as Appellant has clearly waived his PCRA counsel
ineffectiveness claims for a different reason, discussed infra, and “this Court
may affirm the decision of the PCRA [c]ourt if it is correct on any basis.”
Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (citing
Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa. 2000);
Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super. 1996)).
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discuss how that attorney acted ineffectively.4 Instead, Appellant only baldly
stated that his claims were “layered claim[s] of ineffectiveness,” and that
there was a “combined ineffectiveness of counsel,” after which he devoted
the entirety of his argument to trial counsel’s purported ineffectiveness.
Appellant’s PCRA Petition, 2/29/16, at 4, 6, 7. Appellant repeats this same
type of argument on appeal. Specifically, he frames his assertions entirely
in terms of trial counsel’s ineffectiveness, only briefly mentioning his PCRA
counsel’s conduct, and not supporting those cursory comments with any
accompanying discussion or argument. Accordingly, on this basis, we agree
with the post-conviction court that Appellant’s PCRA counsel ineffectiveness
claims are waived.
In sum, Appellant has failed to convince us that the PCRA court erred
by concluding that the claims he seeks to raise herein are waived. It is
apparent that Appellant is attempting to assert issues that he could have
presented in his first petition.5 Without some meaningful challenge to his
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4
We recognize that the PCRA court stated that Appellant challenged PCRA
counsel’s ineffectiveness in his petition, but our review of that document
does not support the court’s conclusion.
5
Indeed, it appears that at least some of the claims Appellant presented in
his second PCRA petition were raised, in some fashion, in his first PCRA
petition, thus making them previously litigated. See 42 Pa.C.S. §
9544(a)(3) (stating “an issue has been previously litigated if[] … it has been
raised and decided in a proceeding collaterally attacking the conviction or
sentence”). For instance, a large majority of Appellant’s specific arguments
suggest an overarching claim that his trial counsel failed to adequately
investigate his whereabouts at the time of the stabbing, by seeking out
(Footnote Continued Next Page)
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PCRA attorney’s failure to present his desired claims in that first petition, we
cannot conclude that this subsequent petition entitles him to relief.
Order affirmed.
President Judge Emeritus Ford Elliott joins this memorandum.
Judge Ransom concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
_______________________
(Footnote Continued)
video tape evidence from the bar where Appellant was located prior to the
stabbing. The PCRA court points out that Appellant presented this same
claim in his first petition, and the court “determined that [it] lacked arguable
merit and that prejudice could not be found.” PCO at 6. Herein, Appellant
presents no challenge to the PCRA court’s suggestion that this claim was
previously litigated.
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