Com. v. Myers, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RAYTI MYERS, :
:
Appellant. : No. 1955 EDA 2017
Appeal from the PCRA Order, June 16, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0011665-2008.
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 12, 2018
Ryati Myers appeals from the order denying his amended petition for
relief pursuant to the Post-Conviction Relief Act (42 Pa.C.S.A. §§ 9541-9546).
That petition attacked Myers’ prior convictions of attempted murder and other
related offenses. We affirm the PCRA court’s denial.
All of Myers’ issues asserted that his counsel was ineffective. The
learned PCRA judge, the Honorable Glenn B. Bronson – who was also the trial
judge in the underlying criminal case and, therefore, observed first-hand the
actions of Myers’ trial counsel – authored a detailed, well-reasoned 1925(a)
Opinion. In it, Judge Bronson correctly and thoroughly disposed of all six
appellate issues as follows:
I. PROCEDURAL BACKGROUND
On November 17, 2009, defendant Rayti Myers was
convicted of attempted murder with serious bodily injury
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caused (18 Pa.C.S. §§ 901(a), 2502), aggravated assault
(18 Pa.C.S. § 2702(a)(1)), and criminal conspiracy (18
Pa.C.S. § 903(a)). On February 17, 2010, the Court
imposed a sentence of fifteen to thirty years incarceration
on the charge of attempted murder. N.T. 02/17/2010 at
30-31. Due to merger, [Myers] was not sentenced on the
conviction for aggravated assault, and due to the statutory
prohibition against multiple convictions of inchoate crimes
(18 Pa.C.S. § 906), [Myers] was not sentenced on the
conviction for criminal conspiracy. N.T. 2/17/10 at 6. The
Court denied [Myers’] post -sentence motion on March 26,
2010. [Myers] subsequently filed an appeal on April 23,
2010.
On November 21, 2011, the Superior Court affirmed
defendant's judgment of sentence. The Supreme Court
denied allocatur on July 9, 2012. [Myers] then filed a pro
se petition under the Post -Conviction Relief Act (“PCRA”) on
June 28, 2013. On March 3, 2017, PCRA counsel filed an
Amended PCRA Petition (“Amended Petition”) raising
multiple claims of ineffective assistance of counsel.
Amended Petition at pp. 6-10. Additionally, the Amended
Petition requested that [Myers] be awarded credit for time
served during his pretrial incarceration. Id. at p. 11. On
June 16, 2017, the Court entered an order dismissing
[Myers’] Amended Petition.
[Myers] has now appealed the Court’s dismissal of his
PCRA Petition, alleging that: 1) trial counsel was ineffective
for failing to pursue severance; 2) trial counsel was
ineffective for failing to object to the Court’s admonishment
of the complainant in front of the jury; 3) trial counsel was
ineffective for failing to preserve a weight of the evidence
claim; 4) appellate counsel was ineffective for failing to
preserve a claim concerning prior bad acts evidence on
appeal; 5) trial counsel was ineffective for failing to object
to, and pursue relief, following prosecutorial misconduct
during closing argument, and appellate counsel was
ineffective for neglecting the issue on appeal; 6) trial
counsel was ineffective for failing to object to a special
interrogatory given to the jury; and 7) the Court erred in
failing to award time credit for pretrial incarceration.
Concise Statement of Errors Complained of on Appeal
(“Statement of Errors”) at ¶¶ 1-7. For the reasons set forth
below, [Myers’] claims are without merit, and the PCRA
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Court’s order dismissing his PCRA Petition should be
affirmed.
II. FACTUAL BACKGROUND
The facts of this case were set forth in this Court’s Rule
1925(a) Opinion filed in [Myers’] direct appeal as follows:
At trial, the Commonwealth presented the
testimony of complainant Dana Treadwell,
Philadelphia Police Detectives Edward Tolliver,
Anthony Vega, and Eric Johnson, Philadelphia Police
Sergeant John Massi, Philadelphia Police Officers
Steven Ahmie, William Albertus, and Chris Lai,
Philadelphia Police Fingerprint Examiner Scott
Copeland, and the mother of co-defendant Andre
Murray, Dolores Murray. [Myers] presented no
testimony. Viewed in the light most favorable to the
Commonwealth as verdict winner, the evidence
established the following.
On May 27, 2008, at about 4:00 p.m., Dana
Treadwell, his wife, two of his children, and two of his
step-nieces were walking near the area of 18th and
Gerritt Streets in Philadelphia when they were nearly
hit by a “greenish gray” car later described by
Treadwell as either a 2005 Chevy Malibu or a 2004
Mitsubishi Gallant. N.T. 11/12/2009 (vol.1) at 15-18,
66, 69; 11/12/2009 (vol. 2) at 124-125. Treadwell
then got into a heated argument with [Myers] who
was driving the car and who Treadwell recognized
from the neighborhood. N.T. 11/12/2009 (vol. 1) at
19, 71; 11/12/2009 (vol. 2) at 124-128. The
passenger of the car joined the argument and
Treadwell was told to wait there until they returned.
N.T. 11/12/2009 (vol. 1) at 66. The car drove away,
and Treadwell walked his family home. N.T.
11/12/2009 (vol. 1) at 19-20, 31, 67.
After being at his house for about three minutes,
Treadwell walked to a corner store at 18th and Reed
Streets, which is one block north of 18th and Gerritt
Streets. N.T. 11/12/2009 (vol. 1) at 31-32, 67. As
Treadwell approached that intersection, he looked
across a vacant lot and saw [Myers] driving the same
car in his direction. N.T. 11/12/2009 (vol. 1) at 33,
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36, 67. The car eventually pulled over near where
Treadwell was standing and Treadwell heard [Myers]
say, “there he goes, get him,” whereupon Murray fired
several shots at Treadwell. N.T. 11/12/2009 (vol. 1)
at 36-37, 67; 11/12/2009 (vol. 2) at 84-86.
Treadwell hid behind a van, but was shot once in the
elbow before the car drove away. N.T. 11/12/2009
(vol. 1) at 37, 43, 67.
After a few minutes, Treadwell ran home and asked
a neighbor to call the police. N.T. 11/12/2009 (vol.
1) 44-45, 67-68. The police took Treadwell to the
hospital where he was treated for a gunshot wound
and discharged that same night. N.T. 11/12/2009
(vol.1) at 45-49; 11/13/2009 (vol.1) at 24.
Treadwell’s gunshot wound required surgery and left
Treadwell unable to perform his job as a trash
collector for several months. N.T. 11/12/2009 (vol.
1) at 109-110; 11/12/2009 (vol. 2) at 38-39.
Trial Court Opinion, filed 8/31/10 at pp. 2-3.
III. DISCUSSION
An appellate court’s review of a PCRA court’s grant or
denial of relief “is limited to determining whether the court’s
findings are supported by the record and the court’s order
is otherwise free of legal error.” Commonwealth v.
Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996) (citing
Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super.
1995)). The reviewing court “will not disturb findings that
are supported by the record." Id.A. Ineffective Assistance of Counsel
The majority of [Myers’] claims pertain to the alleged
ineffective assistance of counsel. Under Pennsylvania law,
counsel is presumed effective and the burden to prove
otherwise lies with the petitioner. Commonwealth v.
Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing
Commonwealth v. Copenhefer, 719 A.2d 242, 250 (Pa.
1998)). To obtain collateral relief based on the ineffective
assistance of counsel, a petitioner must show that counsel’s
representation fell below accepted standards of advocacy
and that as a result thereof, the petitioner was prejudiced.
Strickland v. Washington, 466 U.S. 668, 694 (1984). In
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Pennsylvania, the Strickland standard is interpreted as
requiring proof that: (1) the claim underlying the
ineffectiveness claim had arguable merit; (2) counsel's
actions lacked any reasonable basis; and (3) the
ineffectiveness of counsel caused the petitioner prejudice.
Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009);
Commonwealth v. Pierce, 527 A.2d 973, 974-75 (Pa.
1987). To satisfy the third prong of the test, the petitioner
must prove that, but for counsel’s error, there is a
reasonable probability that the outcome of the proceeding
would have been different. Commonwealth v. Sneed,
899 A.2d 1067, 1084 (Pa. 2006) (citing Strickland, 466
U.S. at 694). If the PCRA court determines that any one of
the three prongs cannot be met, then the court need not
hold an evidentiary hearing, as such a hearing would serve
no purpose. Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008), app. denied, 956 A 2d 433 (Pa. 2008).
1. Failure to Pursue Severance
[Myers] first alleges that trial counsel was ineffective “for
failing to pursue severance.” Statement of Errors at ¶ 1.
This claim is without merit.
The Pennsylvania Rules of Criminal Procedure provide
that “defendants charged in separate indictments or
informations may be tried together if they are alleged to
have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense
or offenses.” Pa.R.Crim.P. 582(A)(2). The Rules further
provide that “the court may order separate trials of
defendants, if it appears any party may be prejudiced by
defendants being tried together.” Pa.R.Crim.P. 583.
However, “it is well established that the law favors a joint
trial when criminal conspiracy is charged.”
Commonwealth v. Serrano, 61 A.3d 279, 285 (Pa. Super.
2013) (quoting Commonwealth v. Colon, 846 A.2d 747,
753-754 (Pa. Super. 2004)). Here, both defendants were
charged with conspiring to murder complainant Treadwell,
and were alleged to have acted together to retrieve a
weapon, and then find and shoot Treadwell following an
argument. Accordingly, the defendants were properly
joined for trial under Rule 582.
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In his PCRA petition, [Myers] contends that trial counsel
should have moved for severance because the joint trial
prejudiced [him] in two ways. First, [Myers] alleges that he
was prejudiced by testimony from a detective that the arrest
warrant for co-defendant Murray was premised upon
information from a confidential source implicating both
defendants. According to [Myers], this violated his rights
under the Confrontation Clause. Amended Petition at p. 6.
However, upon [his] objection to the testimony, the Court
sustained the objection and instructed the jury to disregard
the portion of the detective’s testimony implicating [Myers].
N.T. 11/13/09 (vol. 2) at 57. In addition, the Court gave a
limiting instruction, so it would be clear that the evidence
was not to be considered in any manner against [Myers]:
You can consider that one issue only simply for the
thoroughness of the investigation and why he
terminated his investigation when he did with respect
to Defendant Murray. That’s the only purpose for
which it's permitted to come into evidence and for no
other purpose. There’s no relevance at all to Mr.
Myers because that wasn’t raised as to him.
Id. at 57-58.
Moreover, [Myers] raised in his direct appeal the related
claim that the trial court erred in allowing the jury to hear
the detective’s testimony regarding the informant. The
Superior Court, relying upon the trial court’s opinion, upheld
the ruling that the above curative instruction was sufficient
to avoid any unfair prejudice to [Myers]. Superior Court
Opinion filed November 21, 2011 at pp. 6-7 (citing to Trial
Court Opinion filed August 31, 2010, at pp. 13-14). Trial
counsel cannot be faulted for failing to file a severance
motion based on the potential admission of evidence that
both the trial court and Superior Court found to not be
prejudicial.
Second, [Myers] claims he was prejudiced because co-
defendant Murray’s “actions were attributed to the
Petitioner, a situation that was exacerbated when the ADA
violated an agreement not to use the word ‘gang’ during
testimony and then again during closing arguments.”
Amended Petition at pp. 6-7. This claim is [meritless]. Trial
counsel could not have premised a severance motion on
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prosecutorial misconduct that had yet to occur. Moreover,
the claim that the prosecutor committed misconduct based
on references to the term “gang” was raised on [Myers’]
direct appeal and rejected by both the trial court and the
Superior Court. Trial Court Opinion filed August 31, 2010,
at pp. 10-13; Superior Court Opinion filed November 21,
2011 at p. 56 (relying on trial court's opinion).
In addition, the evidence of [his] participation in a gang
would have been relevant and admissible whether [Myers]
was tried jointly with co-defendant Murray or separately.
Even in a separate trial, the Commonwealth still was
required to prove that [Myers] was guilty of conspiring with
Murray to kill Treadwell. It is well-established that evidence
of a defendant’s gang activity is admissible to establish a
conspiracy. See Commonwealth v. Gwaltney, 442 A.2d
236, 241 (Pa, 1982) (“evidence of the gang activity is highly
probative of whether a conspiracy existed”). Additionally,
evidence of gang activity may be offered to “explain the
conduct of a Commonwealth witness,” such as Treadwell,
who at the trial, completely recanted his prior statements
and testimony incriminating the defendants.
Commonwealth v. Brewington, 740 A.2d 247, 251 (Pa.
Super. 1999).
Accordingly, there were no valid grounds for trial counsel
to move for severance. For that reason, he could not have
been ineffective for failing to do so.
2. Failure to Object to Court Admonishment of the
Complainant
[Myers] next alleges that trial counsel was ineffective for
failing “to object to the Court’s admonishment of the
complainant in front of the jury,” which denied him the right
to a fair and impartial jury. Statement of Errors at ¶ 2. This
claim is premised upon statements that the undersigned
trial judge made to Treadwell during his testimony, including
a direction that Treadwell give truthful answers. The claim
that the Court erred by making prejudicial comments to
Treadwell during his testimony was raised by [Myers] in his
direct appeal. In this Court’s opinion regarding that appeal,
the Court analyzed each allegedly improper comment. Trial
Court Opinion filed August 31, 2010, at pp. 7-10. For the
reasons there stated, all remarks made by the Court were
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entirely proper. Id. Trial counsel cannot be faulted for
failing to object to questioning by the Court that was
completely permissible.
3. Failure to Preserve Weight of the Evidence Claim
[Myers] alleges that trial counsel was ineffective for
failing “to preserve the argument that the greater weight of
the evidence was against the Commonwealth, where the
complainant completely recanted and gave an exonerating
account of the shooting.” Statement of Errors at ¶ 3. While
it is true that trial counsel failed to preserve the weight
claim, this Court still addressed the issue in its opinion on
[Myers’] direct appeal.1 Trial Court Opinion filed August 31,
2010, at pp. 4-6. For the reasons there stated, there was
compelling evidence adduced at trial of [his] guilt, and the
verdict plainly did not shock this Court’s sense of justice.
Because any motion before the trial court for a new trial
based on the weight of the evidence would have been
properly denied, [Myers] was not prejudiced by counsel's
failure to file such motion. No relief is due.
4. Failure to Preserve Issue of Prior Bad Acts
[Myers] alleges that appellate counsel was ineffective for
failing “to preserve the issue of prior bad acts evidence on
appeal.” Statement of Errors at ¶ 4. In particular, [Myers]
claims that appellate counsel neglected to argue on appeal
that the Court improperly admitted evidence of [his]
membership in a gang, and the reputation of that gang for
criminal activity. Amended Petition at pp. 8-9.
[Myers’] claim that the Court erred in admitting evidence
of his gang membership was raised . . . in his Statement of
Errors regarding his direct appeal. While appellate counsel
elected not to present that issue to the Superior Court, the
trial court addressed the issue in its opinion. Trial Court
Opinion filed August 31, 2010, at pp. 10-13. For the reasons
stated there, the claim is meritless. Id. Since appellate
____________________________________________
1 Although the weight claim was not preserved, appellate
counsel included it as a grounds for relief in his Rule 1925(b)
statement.
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counsel cannot be faulted for failing to raise a meritless
claim, no relief is due.
5. Failure to Object and Pursue Relief Following
Prosecutorial Misconduct
[Myers] claims that trial counsel was ineffective for failing
“to object to and pursue relief (including mistrial) from the
prosecutor’s statement in closing that the jury should ‘send
a message’ to these two individuals and to whomever were
helping them in messing with the complainant afterwards
that this would not be condoned in the city” and that
appellate counsel was ineffective for not raising this claim
on appeal. Statement of Errors at ¶ 5. This claim is without
merit.
“It is well-established that comments by a prosecutor
constitute reversible error only where their unavoidable
effect is to prejudice the jury, forming in the jurors’ minds
a fixed bias and hostility toward the defendant, such that
they could not weigh the evidence objectively and render a
fair verdict.” Commonwealth v. Arrington, 86 A.3d 831,
853 (Pa. 2014) (quoting Commonwealth v. Bryant, 67
A.3d 716, 727 (Pa. 2013)). As our courts have repeatedly
stated, “prosecutorial misconduct will not be found where
comments were based on the evidence or proper inferences
therefrom or were only oratorical flair.” Commonwealth
v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (quoting
Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa.
2005)).
It is true that it is generally not proper for a prosecutor
to argue that the jury should convict a defendant to “send a
message” to the community. See Commonwealth v.
Patton, 985 A.2d 1283, 1287 (Pa. 2009). However,
“prosecutorial remarks encouraging a jury to ‘send a
message’ to the defendant, rather than the community or
criminal justice system, do not invite consideration of
extraneous matters and are not misconduct.” Id. at 1288
(citing Commonwealth v. Peterkin, 649 A.2d 121, 129
(Pa. 1994)).
Here, the “send a message” argument, in context, was
as follows:
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I want you to send a message to these two individuals
and whomever were helping them in messing with
Dana Treadwell afterwards that this would not be
condoned in the city, that – send a message to these
two people that this cannot happen. This behavior is
not to be tolerated. You cannot shoot somebody and
then afterwards you cannot come back into the
courtroom after trying to solve your problems on the
street and tell, hey, we handled it out there. We are
going to walk away scot-free. That’s not the message
to send these two. The message is, this will not be
tolerated.
N.T. 11/16/09 (vol. 2) 68-69. From this record, it is clear
that the prosecutor was urging the jury to “send a message”
to [Myers] and Andre Murray, his co-defendant. The
prosecutor never asked the jury to send a message to the
community at large.
However, [Myers] is correct that there was a momentary
reference in the prosecutor’s “send a message” argument to
“whomever was helping” [Myers and Murray]. To the extent
that this argument urged the jury to base its decision on the
effect of the verdict on individuals other than the
defendants, it was not proper. However, the single
reference to [Myers and Murray’s] uncharged accomplices
could not have prejudiced [Myers], in light of the repeated
references in the “send a message” argument to [Myers]
and . . . Murray (“send a message to these two individuals,”
“send a message to these two people,” “that’s not the
message to send these two.” (emphasis added)).
Moreover, lest the jury be at all improperly influenced by
the “send a message” reference, the Court instructed the
jury immediately after the closings to not base its verdict on
any general comments about crime in the area where the
shooting occurred or the community in general, and to
disregard any arguments based on those factors. Id. at 85.
This ensured that the “send a message” comment would not
prejudice [Myers]. No relief is due.
6. Failure to Object to Special Interrogatory
[He] next argues that trial counsel was ineffective for
failing “to object to the special interrogatory given to the
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jury in this case.” Statement of Errors at ¶ 6. The
challenged interrogatory reads, in its entirety, as follows:
If, and only if, you find the defendant, Rayti Meyers,
guilty of attempted murder, then you must answer the
following question:
1. Does the evidence establish, beyond a reasonable
doubt, that defendant Rayti Myers’s attempt to
murder Dana Treadwell caused serious bodily
injury to Dana Treadwell?
[Myers] argues that all special interrogatories are
unlawful, and that the interrogatory used in this case was
inflammatory and prejudicial. Amended Petition at p. 10.
This argument is without merit.
The Crimes Code provides that the maximum sentence
for attempted murder depends upon whether the victim
sustained serious bodily injury. If the victim did not sustain
serious bodily injury, the maximum sentence is 20 years in
prison. If the victim did sustain such injury, the maximum
sentence is increased to 40 years. 18 Pa.C.S. § 1102(c).
Because “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt,” the jury must decide whether an attempted murder
victim sustained serious bodily injury whenever a defendant
is convicted of attempted murder. Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). Accordingly, the Court
submitted the interrogatory to the jury to comply with
Apprendi.
[Myers] cites several cases for the proposition that juror
interrogatories in criminal cases are never allowed.
Amended Petition at p. 10. However, none of those cases
barred the use of an interrogatory where, as here, an
interrogatory was required to comply with Apprendi, and
where there was no statutory provision requiring that the
issue covered by the interrogatory be decided by the judge.
See Commonwealth v. Hopkins, 117 A.3d 247, 268 n.4
(Pa. 2015) (use of interrogatories would not render
constitutional the mandatory sentencing statute for selling
drugs in school zones, where the statute provided that the
judge was to make the decision at sentencing);
Commonwealth v. Jacobs, 39 A.3d 977, 986-987 (Pa.
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2012) (plurality) (absence of interrogatories specifying the
object of a conspiracy irrelevant to determination of whether
convictions for attempted escape and conspiracy to commit
escape are prohibited by the bar of multiple convictions for
inchoate offenses); Commonwealth v. Samuel, 961 A.2d
57, 64-65 (Pa. 2008) (use of interrogatories not proper to
determine whether burglary was a crime of violence under
the two strikes statute, which required that the issue be
decided by the judge at sentencing); Commonwealth v.
Campana, 304 A.2d 432, 437-438 & n.27 (Pa. 1973)
(plurality) (use of interrogatories not helpful to determine
the applicability of the doctrine of collateral estoppel),
vacated on other grounds, 414 U.S. 808 (1973).
Furthermore, [Myers] suffered no prejudice from this
interrogatory. By its clear terms, the jury was directed to
not even consider the interrogatory unless it first convicted
[him] of attempted murder. The Court reinforced this
directive in its jury charge. N.T. 11/16/2009 (vol. 2) at 127-
128 (“If and only if you find a defendant guilty of attempted
murder do you need to get to this. If you find a particular
defendant not guilty of attempted murder, don’t answer the
question.”). No relief is due.
* * * *
IV. CONCLUSION
For the foregoing reasons, the Court's order dismissing
[Myers’] PCRA Petition should be affirmed.
PCRA Court Opinion, 9/19/17, 1-12 (emphasis in original; some punctuation
omitted).
We now adopt the Opinion of the Court of Common Pleas of Philadelphia
County as our own. For all of the above reasons, we agree with the PCRA
judge that his order denying Myers’ PCRA petition should be and, therefore, is
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/18
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