Com. v. Green, D.

J. S18032/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DOMENIC TREVON GREEN, : No. 1505 WDA 2017
:
Appellant :
Appeal from the PCRA Order, September 14, 2017,
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos. CP-02-CR-0005752-2015,
CP-02-CR-0013225-2014
BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 1, 2018
Domenic Trevon Green appeals from the September 14, 2017 order
filed in the Court of Common Pleas of Allegheny County that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court set forth the following:
[Appellant] was originally charged at CC 201413225
with a Violation of the Uniform Firearms Act:
Persons Not to Possess a Firearm[,Footnote 1]
Receiving Stolen Property,[Footnote 2] a Violation of
the Uniform Firearms Act: Carrying a Firearm
without a License[,Footnote 3] and three (3) counts
of Recklessly Endangering Another
Person.[Footnote 4] [Appellant] filed a Pre-Trial
Motion to Sever the Persons Not to Possess charge,
which this Court granted and thereafter listed the
charge at a new number, CC 201505752. Following
a jury trial held before this Court on May 11-12,
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2015 on the Persons Not to Possess charge only,
[appellant] was convicted of the charge. The
remaining charges at the original information were
nolle prossed by the Commonwealth. [Appellant]
next appeared before this Court on August 10, 2015
and was sentenced to a term of imprisonment of five
(5) to 10 years. Timely Post-Sentence Motions were
filed and were denied on August 27, 2015. The
judgment of sentence was affirmed by the Superior
Court on September 12, 2016.
[Footnote 1] 18 Pa.C.S.A. § 6105(a)(1)[.]
[Footnote 2] 18 Pa.C.S.A. § 3925(a)[.]
[Footnote 3] 18 Pa.C.S.A. § 6016(a)(1)[.]
[Footnote 4] 18 Pa.C.S.A. § 2705 –
3 counts.
No further action was taken until December 15,
2016, when [appellant] filed a pro se Petition
pursuant to the [PCRA]. Suzanne Swan, Esquire,
was appointed to represent [appellant] and an
Amended Petition was subsequently filed on April 24,
2017. After reviewing the Amended Petition, the
Commonwealth’s Response thereto and the record in
its entirety and giving the appropriate notice of its
intent to do so,[1] this Court dismissed the Amended
Petition without a hearing on September 14, 2017.
This appeal followed.
Briefly, the evidence presented at trial established
that on August 2, 2014, Alexis Markey, her infant
daughter, [appellant,] and several others were
hanging out at her residence at the Cambridge
Square Apartments in Monroeville. At some point,
the gathering moved out to the parking lot and when
everyone was getting into Markey’s vehicle,
[appellant] got into an altercation with the others
1 On August 23, 2017, the PCRA court cancelled the scheduled hearing and
indicated its intent to dismiss the PCRA petition without a hearing. Appellant
did not respond within the allotted time to the intent to dismiss.
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over who got to sit in the front passenger seat. He
then pulled out a gun and threatened to “shoot the
car up.” (Trial Transcript, p. 85). Monroeville Police
Officers arrived on the scene shortly thereafter,
having been summoned by an anonymous caller to
911 who described [appellant] and the vehicle. Once
all of the individuals had been removed from the car,
Officer Brad Martin looked in the car and saw a
firearm protruding from below the back of the front
passenger seat, where [appellant] had been sitting.
Alexis Markey and Patricia Kurn both gave
statements to the Police indicating that the gun
found belonged to [appellant].
Trial court opinion, 1/16/18 at 1-3.
On October 16, 2017, appellant filed a notice of appeal. On
October 17, 2017, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On November 14, 2017, appellant complied with the order. The trial court
filed its Pa.R.A.P. 1925(a) opinion on January 16, 2018.
Appellant raises the following issue for this court’s review:
Did the [PCRA] court abuse its discretion in denying
the PCRA petition insofar as [appellant] established
the merits of the claim that [appellant] was denied
the effective assistance of trial counsel who advised
him not to testify on his own behalf, where counsel’s
advice was so unreasonable as to vitiate
[appellant’s] knowing and intelligent decision not to
testify?
Appellant’s brief at 4 (capitalization omitted).2
2 Appellant also raises the issue that his claims for relief are properly
cognizable under the PCRA. Initially, appellant contends that he is eligible
for relief under the PCRA because his petition was timely filed; the issue he
raises here was not previously litigated, and the issue was not waived.
While that is true, it does not mean necessarily that he will prevail.
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Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). “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. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
Where the PCRA court has dismissed a petitioner’s petition without an
evidentiary hearing, as was the case here, we review the PCRA court’s
decision for an abuse of discretion. See Commonwealth v. Roney, 79
A.3d 595, 604 (Pa. 2013), cert. denied, 135 S.Ct. 56 (2014) (citation
omitted). Moreover,
the right to an evidentiary hearing on a
post-conviction petition is not absolute. It is within
the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently frivolous
and has no support either in the record or other
evidence. It is the responsibility of the reviewing
court on appeal to examine each issue raised in the
PCRA petition in light of the record certified before it
in order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal
citations omitted).
To prevail on a claim of ineffective assistance of counsel under the
PCRA, a petitioner must plead and prove by a preponderance of the evidence
that counsel’s ineffectiveness “so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must first establish
that “the underlying claim has arguable merit; second, that counsel had no
reasonable basis for his action or inaction; and third, that Appellant was
prejudiced.” Commonwealth v. Charleston, 94 A.3d 1012, 1020
(Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014) (citation
omitted). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d
487 (Pa. 2011) (citation omitted). Additionally, we note that “counsel
cannot be held ineffective for failing to pursue a meritless claim[.]”
Commonwealth v. Hall, 867 A.2d 619, 632 (Pa.Super. 2005), appeal
denied, 895 A.2d 549 (Pa. 2006).
Appellant contends that the trial court abused its discretion when it
denied the PCRA petition where appellant established the merits of the claim
that he was denied effective assistance of trial counsel who advised him not
to testify on his own behalf because he would be impeached with his prior
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conviction for robbery. However, because his robbery conviction was
admitted for purposes of proving the offense charged, appellant asserts that
trial counsel’s advice was so unreasonable as to vitiate appellant’s knowing
and intelligent decision not to testify.
In order to succeed on a claim that counsel was
ineffective for failing to put [a defendant] on the
stand, [an] appellant must prove either: (1) that
counsel interfered with the defendant's right to
testify, or (2) that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
Commonwealth v. Lawson, 762 A.2d 753, 755 (Pa. Super. 2000) (internal
citation and quotation marks omitted). Additionally, “It is well settled that a
defendant who made a knowing, voluntary, intelligent waiver of testimony
may not later claim ineffective assistance of counsel for failure to testify.”
Id. (citations omitted).
At trial, the trial court questioned appellant concerning his decision not
to testify:
THE COURT: [Appellant], you have the right to
testify. Do you understand that?
[Appellant]: Yes, ma’am.
THE COURT: And I understand that you are waiving
your right to testify?
[Appellant]: Yes, ma’am.
THE COURT: And have you discussed this with your
attorney?
[Appellant]: Yes, ma’am.
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THE COURT: Has anybody promised you or
threatened you in any way that may have influenced
your decision?
[Appellant]: No, ma’am.
THE COURT: I’m going to accept the waiver.
Notes of testimony, 5/11/15 at 120.
As appellant made a knowing, voluntary, intelligent waiver of
testimony at trial during the colloquy, he cannot now claim that counsel was
ineffective because he did not testify.
Additionally, we agree with the trial court’s further analysis:
Moreover, [appellant’s] argument also fails to
consider the crimen falsi nature of the prior robbery
conviction. Although the jury was already aware,
through the Commonwealth’s introduction of the
conviction, that [appellant] has a prior criminal
history, [appellant] could also have been impeached
pursuant to Rule 609 of the Pennsylvania Rules of
Evidence given the crimen falsi nature of the
robbery conviction. Thus, despite knowing that
[appellant] was already a criminal, the jury would
have also questioned his honesty in all aspects of his
testimony. To this end, counsel’s advice was most
certainly, under any interpretation, reasonable.
Further, [appellant] makes no averment how his
testimony would have resulted in a different verdict.
The evidence presented at trial established that the
gun was found under the seat where [appellant] was
sitting, and two (2) witnesses testified that the gun
belonged to [appellant]. The evidence was
straightforward and overwhelming. Absent any
indication how [appellant’s] testimony, impeached
with crimen falsi, would have resulted in a different
verdict, [appellant] has failed to establish the
prejudice prong of the ineffectiveness test.
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Trial court opinion, 1/16/18 at 5 (citation to record omitted).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2018
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