Com. v. Cannon, O.

J-S40025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ODELL QUARN CANNON, :
:
Appellant : No. 896 EDA 2016
Appeal from the PCRA Order September 25, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0003756-2006
BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 04, 2017
Appellant, Odell Quarn Cannon, appeals from the September 25, 2014
Order entered in the Chester County Court of Common Pleas dismissing his
first Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. After careful review, we affirm.1
We adopt the factual and procedural history as set forth by the trial
court. See Trial Court Supplemental Opinion, 1/30/17, at 1-3. However, for
purposes of the appeal, we note the following relevant facts. On May 22,
2010, a jury convicted Appellant of Third-Degree Murder and Criminal
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* Former Justice specially assigned to the Superior Court.
1 For reasons discussed infra, we deny Appellant’s Motion for Judicial Notice
filed April 19, 2017.
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Conspiracy to Commit Aggravated Assault2 related to the 2006 shooting and
murder of Brian Keith Brown committed by Terry Gardner at Appellant’s
behest in retaliation for another shooting. On July 7, 2010, the trial court
imposed a term of 25 to 50 years’ incarceration.
Appellant filed a timely direct appeal challenging the sufficiency of the
evidence and raising one evidentiary claim, and this Court affirmed.
Commonwealth v. Cannon, No. 2095 EDA 2010 (Pa. Super. filed October
26, 2011) (unpublished memorandum). Appellant did not seek review by
the Pennsylvania Supreme Court. Appellant’s Judgment of Sentence,
therefore, became final on November 25, 2011. See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 1113.
On May 8, 2012, Appellant filed a timely pro se PCRA Petition. The
PCRA court appointed PCRA counsel, who filed an Amended PCRA Petition on
December 24, 2012.3 On March 12, 2013, the PCRA court filed a notice of
its intent to dismiss Appellant’s PCRA Petition without a hearing pursuant to
Pa.R.Crim.P. 907. PCRA counsel filed a formal response highlighting three of
Appellant’s issues. The court then scheduled a hearing for January 6, 2014.
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2 18 Pa.C.S. § 2502 and 18 Pa.C.S. § 903, respectively.
3 Throughout these PCRA proceedings, numerous attorneys entered and
withdrew their appearances for various reasons. When necessary, we refer
to all attorneys representing Appellant in these PCRA proceedings as “PCRA
counsel.”
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On August 18, 2014, the PCRA court held an evidentiary hearing
limited to two of Appellant’s issues: (1) whether trial counsel had a conflict
of interest; and (2) whether trial counsel was ineffective for failing to
interview or call Edgar Barber as a witness. See Trial Court Opinion,
1/30/17, at 2 n.1.
During the hearing, while a witness was testifying, Appellant
interrupted the witness with his own questions. When the court refused to
entertain Appellant’s questions, Appellant asked to represent himself pro se.
The PCRA court denied Appellant’s request.4 The evidentiary hearing
proceeded, at which Appellant’s trial counsel Thomas Burke testified, as well
as Edgar Barber, Appellant, and Appellant’s father Gilbert Cannon.
The PCRA court dismissed Appellant’s PCRA Petition on September 25,
2014. Appellant timely appealed.5
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4 Unbeknownst to the PCRA court, Appellant had mailed a pro se letter dated
August 13, 2014, requesting permission to proceed pro se. Appellant’s letter
was not formally filed until August 25, 2014, several days after the PCRA
evidentiary hearing had concluded. The PCRA court had not received this
letter from the clerk of courts at the time of the hearing, and Appellant did
not inform the PCRA court of this letter at any time during the evidentiary
hearing.
5 Appellant had previously filed a pro se appeal from the PCRA court’s denial
of his request for permission to proceed pro se, which this Court quashed as
a legal nullity on October 20, 2015, because Appellant was represented by
counsel and counsel had not filed a Notice of Appeal on Appellant’s behalf.
Commonwealth v. Cannon, No. 2642 EDA 2014 (Pa. Super. filed October
20, 2015) (unpublished memorandum).
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On June 22, 2016, this Court remanded this case for the PCRA court to
conduct a hearing in accordance with Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998), and Pa.R.Crim.P. 121 in light of Appellant’s numerous pro se
filings. On August 16, 2016, the PCRA court conducted a Grazier hearing
and permitted Appellant to proceed on appeal pro se. Subsequently, both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents seven issues for our review:
[1.] Whether the trial court abused its discretion by summarily
denying [Appellant’s] request to conduct his PCRA evidentiary
hearing [pro se]?
[2.] Whether trial counsel was ineffective for failing to have
admitted the exculpatory testimony and evidence of Steve
Pittman and Rachelle Pinder, where counsel promised such
evidence to the jury during opening argument, and such
evidence, credited by [Appellant’s] jury, possessing a reasonable
[probability] of affecting the outcome of [Appellant’s] trial
process?
[3.] Whether appellate counsel was ineffective for failing to
appeal the trial court’s decision to deny admission of the
testimony and evidence of Steve Pittman and Rachelle Pinder
regarding exculpatory statements and evidence provided them
by Terry [G]ardner?
[4.] Whether trial counsel was ineffective for failing to
investigate and present the exculpatory evidence and testimony
of Terry Gardner, Kahil Raison and Edgar Barber?
[5.] Whether trial counsel labored under an unconstitutional
conflict of interest by simultaneously representing [Appellant]
and Edgar Barber, w[h]ere Barber, a federally charged
defendant, was simultaneously represented by [Appellant’s]
attorney and actively engaging in proffer sessions-attended by
Commonwealth of Pennsylvania and federal officials-involving
into, and answered questions, about [Appellant’s] guilt in the
instant case?
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[6.] Whether the trial [c]ourt abused its discretion by failing to
expand the evidentiary hearing on [Appellant’s] PCRA petition to
include inquiry into [Appellant’s] claim that trial counsel failed to
investigate and present exculpatory evidence and witnesses
revealed by [Appellant], and such evidence and testimony,
credited by [Appellant’s] jury possessing a reasonable probability
of affecting the outcome of his trial process?
[7.] Wh[e]ther the trial court abused its discretion by failing to
address [Appellant’s] PCRA claim that trial and appellate counsel
were ineffective for failing to detect and object to the inaccurate
prior history score awarded, where such inaccuracy affected the
range of punishment imposed?
Appellant’s Brief at ix (reordered for ease of disposition).
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). To be eligible for relief pursuant to the PCRA, Appellant must
establish, inter alia, that his conviction or sentence resulted from one or
more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2).
Appellant must also establish that the issues raised in the PCRA petition
have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An
allegation of error “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.” 42 Pa.C.S. § 9544(b).
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Appellant’s Belated Request for Permission to Proceed Pro Se
In his first issue, Appellant argues that the PCRA court erred in
denying his oral request to represent himself during the evidentiary hearing.
Appellant’s Brief at 16-17. We disagree.
“A criminal defendant's right to counsel under the Sixth Amendment
includes the concomitant right to waive counsel’s assistance and proceed to
represent oneself at criminal proceedings.” Commonwealth v. El, 977
A.2d 1158, 1162 (Pa. 2009) (citations omitted). “The right to waive
counsel’s assistance and continue pro se is not automatic however.” Id. at
1163. “Rather, only timely and clear requests trigger an inquiry into
whether the right is being asserted knowingly and voluntarily.” Id. (citing
Faretta v. California, 422 U.S. 806, 836 (1975)).
“In Pennsylvania, Rule of Criminal Procedure 121 sets out a framework
for inquiry into a defendant’s request for self-representation.” El, supra at
1162 (citation omitted). “[T]he law is well established that in order to
invoke the right of self-representation, the request to proceed pro se must
be made timely and not for purposes of delay and must be clear and
unequivocal.” Id. at 1163. Such a determination is within the sound
discretion of the trial court and will not be disturbed by this Court absent an
abuse of that discretion. Id. at 1165.
Instantly, we discern no error on the part of the PCRA court in denying
Appellant’s oral request to represent himself made in the midst of the
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evidentiary hearing. The PCRA court first scheduled the evidentiary hearing
on January 6, 2014. After several continuances, the court held the hearing
on August 18, 2014. Although the PCRA court learned after the hearing that
Appellant had mailed a pro se letter to the court dated August 13, 2014,
requesting that he be allowed to proceed pro se, Appellant did not inform
the court or counsel that he had sent this letter. Rather, it was only after
interrupting a testifying witness with his own questions that Appellant asked
to represent himself. The PCRA court denied the request as untimely and
found that Appellant’s request was made for purposes of delay and
confusion. See Trial Ct. Supp. Op, dated 1/30/17, at 5. We conclude that
the court properly exercised its discretion in denying Appellant’s untimely
request.
Ineffectiveness of Trial Counsel and Appellate Counsel: Failing to
Admit Evidence
Appellant next avers that his trial counsel was ineffective for making
unsuccessful arguments. Specifically, he claims counsel should have been
able to persuade the trial court to allow Steven Pittman to testify that
Gardner told him on the porch after the shooting that he shot Brown in
retaliation for Brown having shot someone.6 Appellant’s Brief at 18-28.7
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6 Appellant makes a similar challenge related to Rachelle Pinder, who
purportedly also heard Gardner’s statements on a porch after the shooting.
The trial court did not address this issue in its Rule 1925(a) Opinion because
(Footnote Continued Next Page)
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Appellant also avers that appellate counsel was ineffective for failing to
challenge the trial court’s decision to preclude the statement. Id. at 28-30.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
“If a petitioner cannot prove that trial counsel was ineffective, then
petitioner’s derivative claim of appellate counsel ineffectiveness must also
fail[.]” Commonwealth v. Hutchinson, 25 A.3d 277, 286 (Pa. 2011).
(Footnote Continued) _______________________
Appellant failed to present this argument to the PCRA court. We similarly
conclude that Appellant has, thus, waived this aspect of his claim. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal”).
7 We note that Appellant’s trial counsel did attempt to admit this evidence at
trial. Appellant only challenges the specific arguments counsel made in
support of the admission of that evidence.
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Appellant’s underlying ineffectiveness claim involves the consideration
of our Rules of Evidence and hearsay statements. Hearsay is an out-of-court
statement offered for the truth of the matter asserted. Pa.R.E. 801(c). It is
generally inadmissible unless it falls within one of the exceptions to the
hearsay rule delineated in the Rules of Evidence. Commonwealth v.
Busanet, 54 A.3d 35, 68 (Pa. 2012).
Pennsylvania Rule of Evidence 804(b)(3) provides, in relevant part, as
follows:
(b) The Exceptions. The following are not excluded by the rule
against hearsay if the declarant is unavailable as a witness:
* * *
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would
have made only if the person believed it to be true
because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against
someone else or to expose the declarant to civil or criminal
liability; and
(B) is supported by corroborating circumstances that
clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the declarant to
criminal liability.
Pa.R.E. 804(b)(3). See also Daniel J. Anders, Ohlbaum on the Pennsylvania
Rules of Evidence § 804.40[2]-[6] (2017 ed. LexisNexis Matthew Bender).
In determining whether the corroborating circumstances clearly
indicate a statement’s trustworthiness, courts consider: (1) the declarant’s
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pending charges and upcoming trial for the same murder; (2) the
relationship between the declarant and the defendant; and (3) the
declarant’s subsequent inconsistent statements recanting the original
statement. See Commonwealth v. Hall, 867 A.2d 619, 631-32 (Pa.
Super. 2005).
In the instant case, the PCRA court clarified that Appellant had not
sought to admit Gardner’s statement to prove that Gardner shot Brown as
that fact was essentially uncontested and there had been other evidence
presented throughout trial that Gardner had shot Brown. Rather, the court
concluded that Appellant had sought to use this statement to demonstrate
Gardner’s motive for shooting Brown, i.e., in retaliation for Brown shooting
someone else.
However, Appellant failed to demonstrate that Gardner’s statement
heard by Pittman was supported by corroborating circumstances that clearly
indicated its trustworthiness. Gardner was awaiting his capital murder trial
for shooting Brown as part of the same incident for which Appellant was on
trial. Appellant was charged, and later convicted, as Gardner’s accomplice
and co-conspirator. This demonstrated a close relationship between
Appellant and the declarant that served to undermine the reliability of the
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statement.8 In light of these relevant factors apparent from the record,
Appellant failed to prove “corroborating circumstances that clearly indicated
[the statement’s] trustworthiness[.]” The statement was, thus, inadmissible
under Pa.R.E. 804(b)(3).
Because Pittman’s testimony about Gardner’s statement would not
have been admissible at trial, Appellant has failed to prove the first prong of
the ineffectiveness test, i.e., that the claim has arguable merit. Counsel
cannot be found ineffective for failing to pursue a meritless claim. Thus,
Appellant’s claim regarding trial and appellate counsel fails.9
Ineffectiveness of Trial Counsel: Failing to Investigate Witnesses
Appellant next avers that his trial counsel was ineffective for failing to
investigate and call two witnesses at trial: Edgar Barber, Appellant’s friend
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8 Recognizing several deficiencies in his argument to the PCRA court, in his
Brief Appellant sets forth numerous facts related to Gardner’s statement that
Pittman overheard. Appellant’s Brief at 21-23. Appellant does not direct
this Court to where in the record these facts or averments are supported.
To the extent Appellant seeks to bolster his argument with new facts that
are wholly unsupported and not included in the certified record, this is
improper and we will not consider them. See Commonwealth v. McBride,
957 A.2d 752, 757 (Pa. Super. 2008) (“It is of course fundamental that
matters attached to or contained in briefs are not evidence and cannot be
considered part of the record ... on appeal.”).
9 We reject Appellant’s attempt to expand the scope of his argument on
appeal by citing numerous alternative Pennsylvania Rules of Evidence that
he now believes might apply. See Appellant’s Brief at 23-26. Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”). We note, moreover, that Pittman’s
testimony about Gardner’s hearsay statement is inadmissible under these
various rules as well.
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and a federal inmate who would have purportedly provided testimony
favorable to Appellant;10 and Terry Gardner, the shooter. Appellant’s Brief
at 30-31.11 Appellant claims that these two witnesses would have provided
testimony contradicting other evidence about a phone call that Appellant had
made to Gardner directing Gardner to kill the victim. Id.
To obtain relief on a claim that counsel was ineffective for failing to call
a potential witness, the PCRA petitioner must establish that:
(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.
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10 Barber allegedly would have testified in “the federal prison greens” and
provided testimony favorable to Appellant on a relatively minor point
contradicted by other witnesses, i.e., whether Appellant was present on
Barber’s porch while making an inculpatory phone call after the shooting.
N.T., 8/18/14, at 16-17.
11 Although raised in his appellate brief, the trial court’s Rule 1925(a)
Opinion did not address this claim as it pertains to Kahil Raison because
Appellant failed to raise this issue previously with the PCRA court. We note
that Appellant’s claim is woefully underdeveloped in his Brief, consisting
mostly of averments about other witnesses and only one sentence devoted
to Raison. Based on these defects, Appellant has waived his ineffectiveness
claim with regard to Raison. Pa.R.A.P. 302(a); Pa.R.A.P. 2119;
Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (appellant waived
claims that “fail to contain developed argument or citation to supporting
authorities and the record[.]”).
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Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).
Regarding Edgar Barber, Appellant’s trial counsel testified at the
evidentiary hearing and described the many reasons he chose not to call
Barber as a witness at trial. N.T., 8/18/14, at 16-22. Trial counsel testified
that the Commonwealth had relied on testimony from several incarcerated
co-conspirators with lengthy criminal records who had had their own motives
to kill the victim. Id. at 16. Because defense counsel had anticipated that
Appellant’s own criminal record would not be presented to the jury, counsel
had hoped to show that these criminal witnesses were wrongfully accusing
Appellant to curry favor with prosecutors in order to “to save their own
skin[.]” Id. Further, counsel stated that he had wanted to minimize all
connections between Appellant and other individuals convicted of or involved
in criminal activity, including the co-conspirators in the victim’s murder. Id.
at 15-17.
Significantly, counsel testified regarding his lengthy discussions with
Appellant about discovery, witnesses, and trial strategy that occurred two or
three times each week over the course of several weeks, lasting five to
seven hours at a time. Id. at 15. Counsel testified that Appellant agreed
that they should not call Barber as a witness because “the benefits [of
calling Barber] did not outweigh the costs[.]” Id. at 17. The PCRA court
found counsel’s testimony to be credible.
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Based on our review of the record, Appellant has failed to satisfy the
second prong of the ineffectiveness test, i.e., that counsel had “no
reasonable basis” not to call Edgar Barber. Counsel’s chosen course, to
which Appellant had agreed, was designed to effectuate his client’s interests
and was grounded in sound trial strategy. As a result, Appellant is not
entitled to any relief on this claim.
Appellant also claims that his counsel failed to investigate or call Terry
Gardner, the “undisputed shooter” in this case. Appellant’s Brief at 18.
Appellant summarily claims that Gardner’s testimony would have
contradicted testimony from another witness at trial. Id.
In presenting this claim to the PCRA court, Appellant incredibly
asserted that, had counsel called Gardner at trial, Gardner would have taken
the witness stand, against the advice of his own counsel, confessed to
Brown’s murder, and testified that Appellant had no involvement in the
murder at all. Trial Court Opinion at 10-11.
At trial, Appellant’s counsel admitted that Gardner was unavailable to
testify because Gardner was awaiting his capital trial for the same murder.12
N.T. Trial, 5/20/10, at 186-89. Appellant even brought in Gardner’s counsel,
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12 At the time, Appellant was attempting to admit Gardner’s hearsay
statements through testimony from another witness, which required
Gardner’s unavailability in order to meet the requirements of the relevant
hearsay exception. In order to do so, the trial court required Gardner’s
attorney to appear and confirm that Gardner would invoke his Fifth
Amendment rights pursuant to his advice.
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Attorney Michael Noone, to confirm that Gardner would invoke his Fifth
Amendment rights if called to testify. Id. at 208-10.
Appellant’s unsupported averments directly contradict the certified
record and he has failed to demonstrate that Gardner was available and
willing to testify for the defense. See Washington, supra at 599. Thus,
Appellant’s claim lacks arguable merit, and counsel cannot be found
ineffective with respect to this claim.
Ineffectiveness of Trial Counsel: Conflict of Interest
Next, Appellant contends that he was denied the effective assistance
of counsel because trial counsel had previously represented Edgar Barber
and, thus, labored under irreconcilable and actual conflicts of interest that
adversely affected counsel’s performance. Appellant’s Brief at 30-34.
An actual conflict of interest exists “when, during the course of
counsel’s representation, the clients’ interests diverge with respect to a
material factual or legal issue or to a course of action.” Commonwealth v.
Tharp, 101 A.3d 736, 754 (Pa. 2014) (citations omitted). “While it is true
that prejudice is presumed when counsel is burdened by an actual conflict of
interest, this is so only if the defendant demonstrates that counsel actively
represented conflicting interests and that an actual conflict of interest
adversely affected his lawyer’s performance.” Id. (citations omitted). An
attorney’s representation of a client “is not perpetual through the expiration
of the client’s entire sentence.” Id. (citations omitted).
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This issue has no merit. Appellant has failed to show how trial
counsel’s previous representation of Barber in an unrelated matter adversely
affected trial counsel’s representation of Appellant in the present matter.
Counsel testified at the PCRA hearing that he had completely informed
Appellant of his prior representation and Appellant was aware that it had
been in a matter entirely unrelated to Appellant’s case. Trial Court Opinion
at 10. See also N.T., 8/18/14, at 19.
Appellant claims that counsel’s ambiguous testimony about dates
precluded “an absolute determination that the representations did not
overlap[.]” Appellant’s Brief at 32-33. The PCRA court specifically “credited
the testimony of [trial counsel] provided at the evidentiary hearing and
discredited that of [Appellant].” Trial Court Opinion at 9. Appellant has
provided absolutely no reason for this Court to disturb the PCRA court’s
credibility determinations.13
Additionally, the record shows that trial counsel zealously advocated
on behalf of Appellant. Other than the bald assertions that Appellant
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13On April 19, 2017, Appellant filed a “Motion for Judicial Notice” requesting
that this Court take judicial notice that counsel represented Barber and
Appellant at the same time. We deny that Motion. In Support, Appellant
provides the docket of his underlying criminal case and a federal docket
purporting to be Barber’s case. This Motion should have been presented to
the PCRA court. This is not a fact-finding court. Moreover, no court will take
judicial notice of a fact that is in dispute. See Pa.R.E. 201 (“The court may
judicially notice a fact that is not subject to reasonable dispute…”)
(emphasis added); see also Daniel J. Anders, Ohlbaum on the Pennsylvania
Rules of Evidence § 201.09 et seq. (2017 ed. LexisNexis Matthew Bender).
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presents in his Brief to this Court, he has offered no evidence to suggest that
trial counsel’s alleged conflict of interest adversely affected his performance
in any way. Most significantly, as discussed supra, Appellant fully agreed
with counsel’s strategy not to call Barber as a witness at trial. See also
N.T., 8/18/14, at 16-22. Thus, the PCRA court did not abuse its discretion in
concluding that Appellant failed to demonstrate a conflict of interest.
Accordingly, because the underlying claim of conflict is without merit,
Appellant’s claim of ineffective assistance of counsel fails.
Appellant’s Request to Expand the Scope of the PCRA Evidentiary
Hearing
In his next issue, Appellant avers that the PCRA court abused its
discretion by refusing to expand the scope of his evidentiary hearing to
include trial counsel’s purported failure to investigate and present two
exculpatory witnesses, Kahil Raison and Terry Gardner. Appellant’s Brief at
17-18.
“There is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that no
genuine issues of material fact exist, then a hearing is not necessary.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation
omitted). “With respect to the PCRA court’s decision to deny a request for
an evidentiary hearing, or to hold a limited evidentiary hearing, such a
decision is within the discretion of the PCRA court and will not be overturned
absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,
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617 (Pa. 2015). “A PCRA court does not abuse its discretion merely by
dismissing some claims without a hearing and conducting an evidentiary
hearing on other claims.” Commonwealth v. Watkins, 108 A.3d 692, 726
(Pa. 2014) (citation omitted).
First, we note that Appellant failed to include any reference to Kahil
Raison in his Pa.R.A.P. 1925(b) Statement of Errors. The trial court’s Rule
1925(a) Opinion, thus, did not address the substance of this claim regarding
Kahil Raison.14 As a result, we conclude that Appellant waived this aspect of
his ineffectiveness claim with respect to Kahil Raison. Pa.R.A.P. 302(a);
Pa.R.A.P. 1925(b)(4)(vii).
With respect to Appellant’s claim that his counsel failed to investigate
Terry Gardner, we have previously addressed and rejected the substance of
this claim on the basis that it lacked arguable merit. The certified record
shows that Gardner (1) would have invoked his Fifth Amendment right, and
(2) was unavailable to testify at trial because he was awaiting his capital
trial for the same murder. N.T. Trial, 5/20/10, at 186-89, 208-10. See
discussion, supra. Thus, the trial court did not abuse its discretion in
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14 The PCRA court stated “this issue is too vague[,]” and “it is unclear which
exculpatory evidence [Appellant] believes trial counsel was ineffective for
failing to investigate, whether trial counsel had a reasonable trial strategy
for the alleged omission[,] or why this evidence would have reasonably
resulted in a verdict favorable to [Appellant].” Trial Court Opinion at 6.
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refusing to entertain this claim at Appellant’s evidentiary hearing, and
Appellant’s claim merits no relief.
PCRA Court’s Failure to Address Ineffectiveness Claim Regarding
Sentencing
In his final claim, Appellant contends that the PCRA court abused its
discretion in failing to address in its Rule 1925(a) Opinion his claim that trial
counsel was ineffective for failing to detect a problem with his sentence.
Appellant’s Brief at 34-35.
The Pennsylvania Rules of Appellate Procedure set forth the strict
periods in which appellants must file a concise statement errors complained
of on appeal with the trial court to facilitate the timely preparation of a
formal opinion. See Pa.R.A.P. 1925(b)(2). “[I]n order to preserve their
claims for appellate review, appellants must comply whenever the trial court
orders them to file a Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925.” Commonwealth v. Hill, 16 A.3d 484, 492
(Pa. 2011). “Any issues not raised in a Pa.R.A.P. 1925(b) statement will be
deemed waived.” This Court has no “discretion to countenance deviations
from the Rule’s bright-line nature.” Id.
To preserve issues raised in what otherwise would be considered an
untimely Rule 1925(b) statement, an appellant must file a petition
requesting permission from the trial court to file a supplemental statement.
The petition must set “forth good cause for an extension of a specific amount
of time in which to file the statement,” and the petitioner must “obtain an
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order granting the request for the extension before the issues raised in an
untimely 1925(b) statement will be preserved for appeal to this Court.”
Commonwealth v. Woods, 909 A.2d 372, 378 (Pa. Super. 2006). See
also Commonwealth v. Jackson, 900 A.2d 936, 939 (Pa. Super. 2006)
(en banc) (holding that untimely supplemental statements, filed without
leave of court, did not preserve those issues for appeal).
On December 6, 2016, this Court remanded this case to the PCRA
court for a period of 60 days, directing Appellant to file a Pa.R.A.P. 1925(b)
Statement within 21 days, i.e. by December 27, 2016, and the PCRA court
to file a Rule 1925(a) Opinion within 30 days of receiving Appellant’s
Statement of Errors. Appellant complied, and filed his Rule 1925(b)
Statement on December 20, 2016. However, Appellant did not include this
particular ineffectiveness claim in his Rule 1925(b) Statement of Errors. On
January 12, 2017, Appellant filed a Supplemental Rule 1925(b) Statement of
Errors. It was not until January 20, 2017, that Appellant filed a Motion for
leave to file his Supplemental Rule 1925(b) Statement of Errors.
The PCRA court filed its Rule 1925(a) Opinion on January 30, 2017,
but did not address this issue.
Appellant has not directed our attention to any court order granting
him permission to file a Supplemental Rule 1925(b) Statement of Errors.
Although Appellant complied with this Court’s Order to file a timely Rule
1925(b) Statement of Errors, his Supplement was untimely and filed without
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permission from this Court or the PCRA court. Appellant did not seek leave
to file a Supplemental Rule 1925(b) Statement of Errors within the original
21-day period provided by this Court, and he did not attempt to
demonstrate good cause for an extension explaining why he could not
present this issue in his original Rule 1925(b) Statement of Errors.
Accordingly, Appellant failed to preserve this ineffectiveness claim for our
review. Woods, supra at 378.
Order affirmed. Motion for Judicial Notice denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2017
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