Com. v. Smith, G.

J-S13029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY SMITH :
:
Appellant : No. 1189 WDA 2018
Appeal from the PCRA Order Entered June 19, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013605-2011
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED MAY 29, 2019
Gary Smith appeals, pro se, from the order entered June 19, 2018, in
the Court of Common Pleas of Allegheny County, dismissing his first petition
for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
Smith seeks relief from the sentence of life imprisonment without the
possibility of parole, after the trial court convicted him of murder in the second
degree and related offenses. On appeal, Smith claims he received ineffective
assistance of all prior counsel, that the trial court abused its discretion, that
the prosecutor committed misconduct at trial, that he is actually innocent, and
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 Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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that his sentence is excessive and illegal. For the reasons discussed below,
we affirm.
We take the underlying facts and procedural history in this matter from
this Court’s memorandum on direct appeal.
Co–[d]efendant Eugene McMiller and this [d]efendant, Gary
Smith, were accused of killing Justin Charles during a robbery on
October 14, 2011[.] On that day, Michael Elko and Charles
Coddington were at Mr. Elko’s home at 3103 Miles Street in
C[l]airton. Both Mr. Elko and Mr. Coddington were admitted
heroin users. A friend of the pair, Justin Charles, came to the
home with two (2) African–American males, one of whom Mr. Elko
later identified as [Smith]. Mr. Charles, also a heroin user, was
trying to arrange a drug deal with the two (2) men. Mr. Charles
asked to buy two (2) stamp bags of heroin from the men in order
to sample what the men were selling and then offered that he
would buy a bundle of stamp bags if he liked the first two (2). The
men indicated that they did not have the drugs with them and
would have to leave the house to go get the heroin. The men then
left the house. Mr. Charles asked Mr. Elko if he would get some
heroin for him in the meantime, and Mr. Elko left the house to do
so.
As Mr. Elko was walking in front of his house, he saw [McMiller]
enter the front door of his home, and [Smith] entering the back
door[.] Mr. Elko immediately returned to his home, entering the
house shortly after [McMiller]. As he entered his home, Mr. Elko
heard [Smith], who was in the kitchen, tell someone to lock the
front door because there were police in the area. According to Mr.
Elko, [McMiller] then pulled out a gun and demanded money from
Justin Charles. Mr. Elko tried to give [McMiller] the $20 that Mr.
Charles had given him to buy two (2) stamp bags, but [McMiller]
did not even acknowledge the offer.
[McMiller] threatened that, if Mr. Charles did not give him the
money, he would give the gun to [Smith], who would use it.
[McMiller] gave the gun to [Smith], and another demand for
money was made. In response, Mr. Charles indicated that the
money was upstairs. Mr. Elko stated that there was no money
upstairs because Mr. Charles did not live in the home, and then
the three (3) men walked up the stairs.
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When the three (3) men began walking upstairs, Mr. Elko called
911, and, during his report to the 911 operator, he heard shots
coming from upstairs. Mr. Charles ran down the stairs, followed
by [Smith] with the gun and then [McMiller]. As the three (3) ran
toward the back door, there was another gunshot. After the
shooting, Mr. Elko saw the two (2) African–American men jump
over Mr. Charles and then run together behind some nearby
buildings. Mr. Elko was in the back of the house with Mr. Charles
when the paramedics arrived. Unfortunately, Mr. Charles was
already dead by the time that the paramedics reached him.
Mr. Elko described one of the men who entered his home that day
to the 911 operator. He indicated that one of the men was a larger
black man with a Muslim-style beard, meaning a beard that went
from ear to ear, but with no mustache. Mr. Elko met with a
detective from the Allegheny County Police, Homicide Unit, later
that day and was presented with photographs of individuals who
could have been in his home that day. Mr. Elko identified [Smith]
as one of the men who came into his house, and as the man who
was originally in the kitchen, when shown a photo array by
Detective Hitchings of the Allegheny County police. Mr. Elko
identified [Smith] in court as the man whose photo he selected in
the photo array and as the man who was in his kitchen that day.
The cases of [McMiller] (2011–13606) and [Smith] were originally
joined. Counsel for [McMiller] filed a [m]otion for [s]everance
pursuant to Rule of Criminal Procedure 583, stating that
[McMiller’s] version of events was so antagonistic to [Smith’s]
defense that it would be impossible for a trier-of-fact to believe
both. Specifically, [McMiller] acknowledged in his [m]otion being
present at Mr. Elko’s residence, with [Smith], at the time of the
shooting. The court granted the severance motion on February
16, 2012. While the cases were still joined, counsel for [Smith]
filed a motion seeking to preclude the identification testimony of
Mr. Charles Coddington, also an eyewitness to the events of
October 14, 2011. [The trial court] granted the motion as to
[Smith] on March 13, 2012. As such, the only person to present
eyewitness testimony in this case was Mr. Elko.
Commonwealth v. Smith, 2015 WL 6750722 at **1-3 (Pa. Super. Jul. 21,
2015) (unpublished memorandum) (record citations omitted).
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On July 21, 2015, this Court affirmed the judgment of sentence. Id. at
*1. On December 30, 2015, the Pennsylvania Supreme Court denied leave to
appeal. Commonwealth v. Smith, 130 A.3d 1289 (Pa. 2015).
On December 8, 2016, Smith filed the instant, timely PCRA petition. On
December 14, 2016, the PCRA court appointed counsel, who moved to
withdraw on March 29, 2017.2 On May 31, 2017, the PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition, and, ultimately
dismissed the petition and permitted counsel to withdraw on August 23, 2017.
After continued correspondence from Smith, the court reopened the
case and, on December 4, 2017, Smith filed a voluminous amended PCRA
petition. The Commonwealth filed an answer to the amended petition on
March 15, 2018. On April 4, 2018, Smith requested an extension of time to
file a response to the Commonwealth’s answer. The PCRA court did not
respond to Smith’s request, and, without issuing a second Rule 907 notice,
dismissed the Amended PCRA petition on June 19, 2018.3 The instant, timely
appeal followed. In response to the trial court’s order, Smith filed a timely
ten-page “concise” statement of errors complained of on appeal on October
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3Smith has not challenged the PCRA court’s dismissal of his amended petition
without first issuing a Rule 907 notice, thus he waived any objection to that
defect. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
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16, 2018.4 On October 25, 2018, the PCRA court issued an opinion. On
November 20, 2018, Smith filed a nunc pro tunc motion for leave to amend
his Rule 1925(b) statement. The PCRA did not act on Smith’s request.
The principles that guide our review are well settled. To be eligible for
relief pursuant to the PCRA, an appellant must establish that his conviction or
sentence resulted from one or more of the enumerated errors or defects found
in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues raised in
the PCRA petition have not been previously litigated or waived. 42 Pa.C.S.A.
§ 9543(a)(3). An allegation of error 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 post conviction proceeding.” 42 Pa.C.S.A. § 9544(b). Our
standard of review for an order denying PCRA relief is as follows:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Great
deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the
certified record. Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that a
petitioner’s claim is patently frivolous and is without a trace of
support in either the record or from other evidence.
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4 Smith’s 10-page 8-issue Rule 1925(b) statement is not in compliance with
Pennsylvania Rule of Appellate Procedure 1925(b)(4). See Commonwealth
v. Vurimindi, 200 A.3d 394, 1031, 1040-1041 (Pa. Super. 2018). This Court
would be well within our rights to dismiss the appeal on this basis. However,
because the PCRA court was able to address Smith’s issues and because it
does not appear that Smith acted in bad faith, we will address the issues he
raised on appeal. See id. at 1043 (holding defendant waived all issues on
appeal by filing prolix Rule 1925(b) statement where PCRA court determined
that he deliberately raised outrageous number of issues).
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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted).
In his first issue, Smith claims that he received ineffective assistance of
trial, direct appeal, and PCRA counsel. Smith’s Brief, at 7-14. Initially, we
note that, because of the scattershot nature of Smith’s brief, it is exceedingly
difficult to parse the specifics of his claims. However, it appears that he claims
that trial counsel was ineffective for coercing him into waiving his right to a
jury trial (Smith’s Brief, at 7-8), and for failing to investigate and call proposed
alibi witness Lolita Page (id. at 8-10). Smith claims that direct appeal counsel
was ineffective for: (1) not raising the ineffectiveness of trial counsel on direct
appeal; (2) not raising the issue of a violation of the Confrontation Clause of
the United States Constitution because Smith could not confront McMiller, his
co-defendant; (3) not raising the issue that he was actually innocent of
robbery; and (4) not raising the issue that the trial court wrongly admitted
identification testimony. Id. at 10-12. Lastly, Smith avers that PCRA counsel
failed to conduct a proper review of his proposed claims and should have filed
an amended PCRA petition. Id. at 12-14. However, Smith has waived the
majority of these claims.
Our standard of review is long settled:
With respect to claims of ineffective assistance of counsel, counsel
is presumed to be effective, and the petitioner bears the burden
of proving to the contrary. To prevail, the petitioner must plead
and prove, by a preponderance of the evidence, the following
three elements: (1) the underlying claim has arguable merit; (2)
counsel had no reasonable basis for his or her action or inaction;
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and (3) the petitioner suffered prejudice as a result of counsel’s
action or inaction. With regard to the second prong (reasonable
basis), we do not question whether there were other more logical
courses of action which counsel could have pursued; rather, we
must examine whether counsel’s decisions had any reasonable
basis. We will hold that counsel’s strategy lacked a reasonable
basis only if the petitioner proves that a foregone alternative
offered a potential for success substantially greater than the
course actually pursued. Our review of counsel’s performance
must be highly deferential. To establish the third element
(prejudice), the petitioner must show that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Because a petitioner’s failure to satisfy any of the above-
mentioned elements is dispositive of the entire claim, [a] court is
not required to analyze the elements of an ineffectiveness claim
in any particular order of priority; instead, if a claim fails under
any necessary element of the ineffectiveness test, the court may
proceed to that element first.
Commonwealth v. Brown, 196 A.3d 130, 150-151 (Pa. 2018) (citations,
internal citations, and quotation marks omitted).
Here, Smith did not raise his claims that trial counsel was ineffective for
coercing him into waiving his right to a jury trial, as well as all his claims
regarding ineffective assistance of direct appeal and PCRA counsel in his Rule
1925(b) statement. See Statement of Errors Complained of on Appeal,
10/16/2018, at unnumbered pages 1-10. As amended in 2007, Pennsylvania
Rule of Appellate Procedure 1925 provides that issues that are not included in
the Rule 1925(b) statement or raised in accordance with Rule 1925(b)(4) are
waived. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v.
Heggins, 809 A.2d 908, 911 (Pa. Super. 2011), appeal denied, 827 A.2d 430(Pa. 2003) (“[A Rule 1925(b)] [s]tatement which is too vague to allow the
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court to identify the issues raised on appeal is the functional equivalent to no
[c]oncise [s]tatement at all.”); Commonwealth v. Lord, 719 A.2d 306, 308
(Pa. 1998), superseded by rule on other grounds as stated in
Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009). Thus,
Smith waived these claims.
Smith’s only remaining claim of ineffective assistance of counsel is that
trial counsel was ineffective for failing to call proposed alibi witness Lolita
Page.
To prove that trial counsel provided ineffective assistance for
failing to call a witness, a petitioner must demonstrate:
(1) the witness existed; (2) the witness was available
to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness;
(4) the witness was willing to testify for the defense;
and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a
fair trial.
Brown, supra at 167 (citation omitted).
Here, Smith did not attach any witness certification from Lolita Page to
either his PCRA or amended PCRA petitions, did not delineate the specifics of
her testimony, did not state that she would testify at a PCRA hearing, and did
not indicate that she was ready and willing to testify at trial. It is also unclear
if Smith ever informed trial counsel of her existence. These omissions are
fatal to his claim. See Pa.R.Crim.P. 902(A)(15); Brown, supra. Smith’s first
claim fails.
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In his second claim, Smith alleges that the trial court committed
numerous errors in its rulings throughout the trial process.5 Specifically,
Smith contends that the trial court’s rulings were not impartial because it also
heard McMiller’s case. Smith’s Brief, at 14-17. In his third issue, Smith claims
the prosecutor committed misconduct by making several false statements to
the trial court.6 Id. at 17-18. However, Smith waived these claims. See 42
Pa.C.S.A. § 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, at trial,
during unitary review, on appeal or in a prior state postconviction
proceeding.”). We note that, generally, claims of trial court error and
prosecutorial misconduct, other than those enumerated in 42 Pa.C.S.A. §
9543(a)(2)(i-viii), are not cognizable under the PCRA. Here, Smith could have
raised his claims of trial court bias and prosecutorial misconduct on direct
appeal, but he failed to do so. Accordingly, we need not address Smith’s
second and third arguments further.7
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5 Smith’s second claim is a direct claim of trial court error, which he raises
independently of his claims of ineffective assistance of counsel. See Smith’s
Brief, at 14-17.
6Again, this a direct claim of prosecutorial misconduct, raised separate and
apart from Smith’s claim of ineffective assistance of counsel. See Smith’s
Brief, at 17-18.
7 We note, moreover, that Smith did not raise his second and third claims in
his Rule 1925(b) statement and he waived them for that reason as well. See
Pa.R.A.P. 1925(b)(4)(vii).
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In his fourth claim, Smith seems to challenge both the weight and
sufficiency of the evidence, claiming he is actually innocent of the crimes.
Smith’s Brief, at 18-21.8 However, to the extent that Smith alleges that the
evidence was not sufficient to sustain his conviction; the claim is again waived
because it was not presented on direct appeal. See 42 Pa.C.S.A. § 9544(b).
To the extent that Smith is challenging the weight of the evidence, that issue
was previously litigated (and rejected) on direct appeal. See Smith, supra,
2015 WL 6750722, at **5-6. See also Commonwealth v. Spotz, 47 A.3d
63, 101 (Pa. 2012) (issue previously litigated is not cognizable under PCRA).
Thus, Smith’s fourth claim fails.
In his fifth and final claim, Smith challenges both the discretionary
aspects and legality of his sentence. Smith’s Brief, at 21-22. To the extent
that Smith challenges the discretionary aspects of his sentence, we conclude
this issue is waived as such a claim is not cognizable under the PCRA. See 42
Pa.C.S.A. § 9543(a)(2)(i-viii).9 Accordingly, this argument fails and/or is
waived.
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8 Like Smith’s second and third claims, his fourth claim is a direct challenge to
the weight and sufficiency of the evidence, made separately from his
ineffective assistance of counsel claims. See Smith’s Brief, at 18-21.
9 It is not clear whether Smith is challenging just the discretionary aspects of
the sentence for robbery, or the entire sentence. We note that the record
reflects that the trial court sentenced Smith to second-degree murder, which
carries a mandatory life sentence. Thus, it could not impose any other
sentence for that conviction.
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Smith also purports to challenge the legality of his sentence, a claim
that is cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(vii).
However, our review of Smith’s brief demonstrates that his challenge to the
legality of his sentence for robbery is merely a reiteration of his claim that the
evidence was not sufficient to sustain his conviction, a claim we have already
disposed of. Thus, Smith’s final claim fails.
Because we have concluded that all of the issues raised in Smith’s
appellate brief were either previously litigated, waived, or lacking in merit, we
conclude the PCRA court did not err in dismissing Smith’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/2019
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