Com. v. Thomas, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JASON PHILLIP THOMAS
Appellant No. 1927 WDA 2016
Appeal from the PCRA Order November 18, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001973-2014
BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 17, 2017
Appellant, Jason Phillip Thomas, appeals pro se from the order
dismissing his first Post Conviction Relief Act1 (“PCRA”) petition. Appellant
contends that both his PCRA and trial counsel were ineffective. We affirm.
The salient facts were summarized by this Court as follows:
On April 8, 2014, Appellant shot and stabbed Stephon
Bibbs (“Bibbs”), who lived in the apartment above
Appellant, on the landing of their building’s steps.
Appellant then stole Bibbs’ wallet and clothing. The gun
used in the murder was stolen and two other individuals
were inside the residence when the murder occurred.
On August 7, 2014, Appellant was charged via criminal
information with first-degree murder,[fn1] aggravated
assault,[fn2] robbery,[fn3] two counts of receiving stolen
property,[fn4] two counts of possessing an instrument of
crime,[fn5] three counts of recklessly endangering another
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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person,[fn6] and unlawful taking.[fn7] On March 5, 2015,
Appellant was found guilty of all 11 charged offenses. On
April 22, 2015, Appellant was sentenced to an aggregate
term of life imprisonment without the possibility of parole.
[fn1] 18 Pa.C.S.A. § 2502(a).
[fn2] 18 Pa.C.S.A. § 2702(a)(1).
[fn3] 18 Pa.C.S.A. § 3701(a)(1)(i).
[fn4] 18 Pa.C.S.A. § 3925(a).
[fn5] 18 Pa.C.S.A. § 907(a).
[fn6] 18 Pa.C.S.A. § 2705.
[fn7] 18 Pa.C.S.A. § 3921(a).
Commonwealth v. Thomas, 805 WDA 2015, at *1-2 (Pa. Super. Mar. 11,
2016) (unpublished memorandum).
Appellant filed a timely direct appeal and this Court affirmed
Appellant’s judgment of sentence on March 11, 2016. Id. at 1, 7. This
Court also granted counsel’s Anders2 petition for leave to withdraw.
Appellant did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
Appellant filed the instant, timely pro se PCRA petition. The PCRA
court appointed counsel. On May 31, 2016, PCRA counsel filed a no-merit
2 Anders v. California, 386 U.S. 738 (1967).
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letter and petition to withdrawal pursuant to Turner/Finley.3 In his letter,
PCRA counsel provided a comprehensive review of Appellant’s ineffective
assistance of counsel claims and found that the claims lacked merit.
Appellant filed a pro se objection to PCRA counsel’s no-merit letter on June
16, 2016.
In addition, on July 8, 2016, Appellant filed a pro se motion for a
Grazier4 hearing. The PCRA court conducted a Grazier hearing on October
3, 2016 and denied PCRA counsel’s petition to withdraw at that time.
Appellant filed a pro se motion requesting new PCRA counsel on October 25,
2016. The following day, the court denied Appellant’s motion for new
counsel, issued a notice of its intent to dismiss Appellant’s petition without a
hearing pursuant to Pa.R.Crim.P. 907, and granted PCRA counsel’s petition
to withdraw. On November 17, 2016, Appellant filed a pro se objection to
the PCRA court’s Rule 907 notice. The court entered the final order
dismissing Appellant’s petition the next day. Appellant timely appealed, and
both Appellant and the court complied with Pa.R.A.P. 1925.
During the pendency of this appeal, Appellant has filed several
motions, pro se, alleging that he did not have access to the information
necessary to pursue his appeal. On February 1, 2017, Appellant filed a
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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“Motion for Discovery/Bill of Particulars” with this Court. This Court
responded by issuing an order, on February 7, 2017, granting Appellant’s
motion and ordering the trial court to ensure that Appellant was provided
with all the material necessary for his appeal. Thereafter, on March 9, 2017,
Appellant filed a “Motion Requesting Order” and a “Motion for Pre-Trial
Discovery” with this Court wherein he acknowledged receiving materials
from the Erie County Court of Common Pleas but maintained he had not
received all the information that he required.5 Further, on March 13, 2017,
Appellant filed “Motion Requesting Help” with this Court. On March 23,
2017, we issued an order denying all three of the above referenced motions
and directing Appellant that any arguments regarding any lack of access to
documents could be set forth in his appellate brief. Lastly, on August 30
2017, Appellant filed a “Motion Requestion [sic] Voir
Dire Transcripts and Colloquy Transcripts.”
Appellant raises the following issues for our review:
Whether the PCRA court abused its discretion or
committed an error of law when it denied Appellant’s
request to amend his PCRA [petition] after permitting
PCRA counsel’s request to withdraw[?]
Whether prior counsel was ineffective for failing to consult
with [Appellant] about his PCRA prior to filing a no-merit
letter?
5 We note that pursuant to our rules of criminal procedure regarding
collateral review, “no discovery shall be permitted at any stage of the
proceedings, except upon leave of court after a showing of exceptional
circumstances.” Pa.R.Crim.P. 902(E)(1).
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Whether prior counsel were ineffective for failing to provide
[Appellant] with his discovery or go over the discovery
with [Appellant][?]
Whether the PCRA court abused its discretion or
committed an error of law when it denied [Appellant’s]
request for a Grazier colloquy and hearing after
permitting PCRA [c]ounsel to withdraw?[6]
Appellant’s Brief at 6.7
The crux of Appellant’s first and second issue is the same. He
specifically avers that his PCRA counsel was ineffective for failing to meet
with him and for failing to file an amended PCRA petition. Appellant
generally contends that had PCRA counsel met with him prior to filing a
Turner/Finley no-merit letter, he could have pursued “off the record issues”
not included in his pro se PCRA petition. Id. at 11. Further, Appellant
argues that PCRA counsel was ineffective for failing to amend his PCRA
petition to rectify any defects, as contemplated under Pa.R.Crim. P. 905(B).
In his third issue, Appellant asserts that his trial counsel was also ineffective.
The gravamen of this issue lies in his contention that trial counsel failed to
properly obtain or investigate pre-trial discovery evidence. To this end,
6 Appellant has not provided any argument regarding his fourth issue on
appeal and therefore it is waived. See Commonwealth v. Buterbaugh,
91 A.3d 1247, 1262 (Pa.Super. 2014) (en banc) (“The Pennsylvania Rules of
Appellate Procedure require that each question an appellant raises be
supported by discussion and analysis of pertinent authority, and failure to do
so constitutes waiver of the claim.”); See also Pa.R.A.P. 2119(a)-(b).
7 We have reordered Appellant’s issues for ease of disposition.
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Appellant generally avers that the outcome of his trial would have been
different had his trial counsel reviewed “discovery” with him. Id. at 16. We
address Appellant’s three claims together and conclude that no relief is due.
We begin by noting “[o]ur standard of review of a PCRA court’s
dismissal of a PCRA petition is limited to examining whether the PCRA
court’s determination is supported by the evidence of record and free of
legal error.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super.
2003) (en banc) (citation omitted).
It is well settled
that counsel is presumed effective, and to rebut that
presumption, the PCRA petitioner must demonstrate that
counsel's performance was deficient and that such
deficiency prejudiced him. Strickland v. Washington, [ ]
104 S. Ct. 2052, [ ] (1984). This Court has characterized
the Strickland standard as tripartite, by dividing the
performance element into two distinct parts.
Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.]
1987). Thus, to prove counsel ineffective, [a]ppellant
must demonstrate that: (1) the underlying legal issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) [a]ppellant was prejudiced by
counsel's act or omission. Id. at 975.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012).
In the PCRA arena, a petitioner has an absolute right to counsel on his
first petition. Commonwealth v. Lindsey, 687 A.2d 1144, 1145 (Pa.
Super. 1996). PCRA counsel must file either an amended PCRA petition or
seek withdrawal with a Turner/Finley no-merit letter. Commonwealth v.
Burkett, 5 A.3d 1260, 1277 (Pa. Super. 2010).
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Counsel seeking to withdraw under Turner/Finley
. . . 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 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.
....
Where counsel submits a petition and no[ ]merit
letter that . . . 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.
Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016)
(citations omitted).
In the case sub judice, Appellant argues that his PCRA counsel was
ineffective for failing to file an amended PCRA petition on his behalf.
However, counsel properly filed a comprehensive Turner/Finley no-merit
letter, which thoroughly discussed Appellant’s arguments set forth in his pro
se PCRA petition and found that they lacked merit. See Burkett, 5 A.3d at
1277; Muzzy, 141 A.3d at 510-11. Moreover, Appellant fails to specify what
“off the record” arguments PCRA counsel could have presented. Hence,
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Appellant has not established that the underlying legal issues which he
claims PCRA counsel should have asserted had arguable merit. See
Koehler, 36 A.3d at 132. Thus, he fails to prove that his PCRA counsel was
ineffective and his first two issues lack merit. See id.
Similarly, in his third issue, Appellant fails to specify what particular
evidence trial counsel did not investigate or review with him. Moreover,
Appellant does not state how such evidence would have altered the outcome
of his trial. Once again, Appellant fails to establish the underlying legal
merit of his contentions. See id. Thus, his claim that trial counsel was
ineffective also must fail. See id. For these reasons, the PCRA court
properly denied Appellant’s PCRA petition.
Lastly, we note that Appellant also fails to specify, [in his most recent
motion requesting voir dire transcripts], how such information would affect
the outcome of his case. Moreover, Appellant did not raise an issue
regarding voir dire in his PCRA petition, his objection to PCRA counsel’s no-
merit letter, or his objection to the PCRA court’s Rule 907 notice. It is well
settled that issues raised for the first time on appeal are deemed waived.
See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Rivera v. Home Depot,
832 A.2d 487 (Pa.Super. 2003). Therefore, those transcripts are not
necessary to the present appeal, and we deny the motion without prejudice
to Appellant seeking relief in the PCRA court.
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Order affirmed. Motion for voir dire transcripts and colloquy
transcripts denied without prejudice.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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