Com. v. Golphin, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARKEA GOLPHIN :
:
Appellant : No. 491 EDA 2018
Appeal from the PCRA Order January 30, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009763-2010
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JUNE 18, 2019
Markea Golphin appeals from the order entered on January 30, 2018, in
the Court of Common Pleas of Philadelphia County, denying her relief on her
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541 et seq. In this timely appeal, Golphin claims the PCRA court erred in
failing to grant an evidentiary hearing on three claims of ineffective assistance
of counsel. These claims have no merit.1 Accordingly, we affirm.
In July, 2011, Golphin was convicted by a jury of first-degree
aggravated assault, simple assault, recklessly endangering another person,
and possessing an instrument of crime.2 She received an aggregate sentence
of 10 to 25 years’ incarceration. The facts underlying her conviction were,
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1 Although Golphin raised 11 issues in her 1925(b) statement of matters
complained of on appeal, only three have been briefed.
2 18 Pa.C.S. §§ 2702(a), 2701(a), 2705, and 907(a), respectively.
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during an altercation with another individual, Golphin stabbed Police
Lieutenant Jonathan Josey in the back with a three-inch knife, causing him
severe blood loss and serious bodily injury. Golphin presented a defense of
justification (self-defense). Her co-defendant, Ayisha Palmer, presented a
defense of mere presence. Palmer was acquitted of all charges. Relevant to
this appeal, Golphin and Palmer were tried jointly and were represented by
partners in law, Tariq El-Shabazz, Esq., and Qawi Abdul-Rahman, Esq.,
respectively. On the day of trial, prior to the jury being sworn, the trial court
conducted a colloquy to determine if the co-defendants were willing to waive
any future claim of conflict of interest based upon the partnership relationship
between their counsel. Both co-defendants indicated they were willing to
proceed.
Despite the years between Golphin’s conviction in 2011 and the filing of
the instant PCRA petition in 2017, both the petition and appeal are timely. 3
Golphin now claims the PCRA court erred in failing to hold an evidentiary
hearing regarding three claims of ineffective assistance of counsel.
Our standard of review is as follows:
Our standard of review of the denial of a PCRA petition is limited
to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
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3 This decision has been repeatedly delayed due to the inaction of both
counsel. Golphin’s counsel initially failed to file a required Pa.R.A.P. 1925(b)
statement, necessitating a remand. The Commonwealth subsequently sought
multiple extensions of time to file the appellee’s brief.
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Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011),
appeal denied, 612 Pa. 687, 29 A.2d 795 (2011). This Court grants
great deference to the findings of the PCRA court if the record
contains any support for those findings. Commonwealth v.
Boyd, 923 A.2d 513 (Pa. Super. 2007), appeal denied, 593 Pa.
754, 932 A.2d 74 (2007). We give no such deference, however,
to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190 (Pa. Super. 2012). Further, a petitioner is not entitled
to a PCRA hearing as a matter of right; the PCRA court can decline
to hold a hearing if there is no genuine issue concerning any
material fact, the petitioner is not entitled to relief, and no purpose
would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335 (Pa. Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).
When asserting a claim of ineffective assistance of counsel, the
petitioner is required to demonstrate that: (1) the underlying
claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his action or inaction; and, (3) but for the errors and
omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).
The failure to satisfy any prong of the test for ineffectiveness will
cause the claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which
forms the basis for the assertion of ineffectiveness is of arguable
merit....” Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d
189, 194 (1994). “Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004).
Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019).
In her first issue, Golphin claims the PCRA court erred in failing to hold
an evidentiary hearing on her assertion that her trial counsel failed to inform
her of the potential for a conflict of interest between counsel’s representation
of Golphin and his partner’s representation of co-defendant, Palmer. A review
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of the notes of testimony shows the strong likelihood that counsel did indeed
fail to inform Golphin of the possibility of a conflict of interest. During the
colloquy immediately before trial, counsel for Palmer admitted, “I have not
spoken to her [Palmer] about this, but we talked about the individuality of the
case itself.” N.T., 6/2/2011, at 173. Attorney El-Shabazz made no comment
at all regarding having informed Golphin of any potential problems. The trial
court then noted, “Ordinarily this would have been raised early on in the
proceedings. This never came up before.” Id. at 174. The Assistant District
Attorney stated immediately thereafter, “I tried to bring this to the attention
of Judge Ciesler[‘s] court, but the court staff would not listen.” Id. It is
concerning that counsel would apparently ignore the possibility of a conflict of
interest. However, under our interpretation of the instant claim, we discern
no cognizable assertion of prejudice.
The record demonstrates that the defenses of Golphin and Palmer were
not antagonistic. Palmer claimed she was merely in the presence of the fight,
while Golphin claimed justification in that she was attempting to keep
Lieutenant Josey from restraining her while the person she argued with
punched her in the face. She claimed she had no idea that the victim, who
was off duty and coming from a local bar when he chanced upon the argument,
was a police officer.
Further, the PCRA court correctly notes that, despite the late notice to
the court of a possible conflict of interest, both defendants were questioned
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regarding their choice of counsel and both co-defendants, having been
specifically informed about the possibility of conflict, agreed to proceed. Both
co-defendants were given the opportunity to consult with their attorneys and
both refused the opportunity. Both co-defendants were informed that if they
agreed to proceed with counsel, having been informed of the possibility of a
conflict of interest, they would likely not prevail on any subsequent claim
regarding a conflict of interest. Having been so informed, both defendants
agreed to proceed. In relevant part, the notes of testimony read as follows:
The Court: . . . Do you want an opportunity to speak to your
lawyers for a few minutes?
[Palmer]: No.
[Golphin]: No
The Court: Has anyone promised you anything or threatened you
or forced you to waive your right to have independent counsel?
Ms. Palmer?
[Palmer]: No.
The Court: Ms. Golphin?
[Golphin]: No.
The Court: Are you doing this of your own free will? Ms. Palmer?
[Palmer]: Yes.
The Court: Ms. Golphin?
[Golphin]: Yes.
The Court: Are there any additional questions that anyone wishes
to ask the defendants on this issue? Ms. Donnelly?
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[ADA] Donnelly: No, Your Honor.
The Court: Mr. Abdul-Rahman?
Mr. Abdul-Rahman: No, Your Honor.
The Court: Mr. El Shabazz?
Mr. El Shabazz: As His Honor just explained to you, you’re
comfortable with my representing you in this matter?
[Golphin]: Yes.
…
The Court: We will take a break then, and I do find that these
waivers were made knowingly, intelligently and voluntarily, and
we will resume with opening instructions and opening statements.
N.T. Trial, 6/27/2011, at 174-177. The above colloquy demonstrates Golphin
was not coerced into waiving a possible claim of conflict of interest.
The record also demonstrates that no offers had been made to either
co-defendant to testify favorably for the Commonwealth in exchange for any
form of consideration. The Commonwealth specifically denied having made
any such offer. See id.
The only suggestion of prejudice Golphin claims is that counsel failed to
effectively cross-examine Palmer about her testimony that Golphin retrieved
the knife from her car after the underlying altercation had begun. Golphin
argues this led to a possible inference that she intended to stab Lieutenant
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Josey.4 However, despite Golphin’s assertions, there are no specific
allegations linking the allegedly inadequate cross-examination by trial
counsel, to any conflict of interest. There is no demonstration of how the
failure to challenge Palmer regarding the original location of the knife was due
to an improper concern by Attorney El Shabazz for his partner’s client.
Indeed, Palmer’s recollection whether Golphin carried the knife with her or
retrieved it from her car has no bearing at all on Palmer’s defense that she
was merely present.
In light of the colloquy undertaken by the trial court and the failure to
present a cognizable claim of prejudice, the PCRA court did not err in failing
to hold an evidentiary hearing on this issue. Accordingly, Golphin is not
entitled to relief on this claim.
Next, Golphin argues the PCRA court erred in failing to hold an
evidentiary hearing on her claim that trial counsel was ineffective for failing to
adequately meet and consult with both her and co-defendant Palmer. She
argues that had trial counsel met with and interviewed co-defendant Palmer,
he would have discovered that Palmer intended to testify that Golphin
retrieved the knife from her car after the incident began, leading to the
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4 Although Golphin testified at trial that she had been carrying the knife in her
dress the entire time, in her prior statement to the police, she claimed she
retrieved the knife from her car after the altercation had begun. See PCRA
Court Opinion, 1/29/2019, at 14. The Commonwealth did not seek to
introduce the prior statement at trial. N.T. Trial, 6/27/11, at 10-11. The PCRA
court opined the statement was exculpatory and trial counsel had a reasonable
basis for not seeking suppression. PCRA Court Opinion, at 14 and n. 5.
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possible conclusion that she intended to stab Lieutenant Josey. However, this
argument was not raised before the PCRA court. Indeed, Golphin’s amended
1925(b) statement presents no specific argument at all. Rather, the PCRA
court was faced with a generic claim that counsel “would have discovered
additional evidence to support the defense of self-defense.” Golphin’s
Pa.R.A.P. 1925(b) Statement, at ¶ B. The PCRA court noted the argument
was undeveloped by failing to indicate what evidence would or could have
been discovered and found the claim waived. We agree.
We further note that Golphin’s current argument, claiming trial counsel
would have discovered antagonistic testimony from co-defendant Palmer, has
nothing to do with the generic claim made in her 1925(b) statement. This
fact also renders Golphin’s current argument waived as an appellant cannot
raise an argument for the first time on appeal. 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); Commonwealth v. Green, 204 A.3d 469, 483 (Pa. Super. 2019)
(same).
In light of the above, Golphin is not entitled to relief on this issue.
In her final issue, Golphin claims trial counsel was ineffective for failing
to convey a plea agreement to her. Once again, the argument made on appeal
differs from the one raised before the PCRA court. In her PCRA petition,
Golphin argued counsel failed to adequately advise her regarding the plea
agreement, by failing to explain “sentencing guidelines and the merits of a
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non-trial disposition.” PCRA Petition at ¶ 24 b. The petition suggests that
Golphin knew of the alleged offer,5 but was not made aware by trial counsel
of the ramifications of the offer. Now, on appeal, Golphin claims she was
never informed of this offer in the first place.6 Just as in the prior issue, one
cannot raise an argument for the first time on appeal. Accordingly, the issue
is waived.
We note as well, that in order to prevail on such a claim, the defendant
must assert that had she been informed of the offer, she would have accepted
the offer, thereby demonstrating prejudice in the failure of counsel to inform
her of the possibility of a plea agreement.7 Here, Golphin does not make such
an assertion. Rather, she merely states, “she likely would have accepted it if
it was reasonable because the complainant was a police lieutenant and carried
an imprimatur of credibility and she could not reasonably argue that she did
not stab him.” Golphin’s Brief, at 41-42. Furthermore, Golphin’s defense was
not that “she did not stab him,” it was that she stabbed him in self-defense.
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5 Golphin claims she was offered 8-16 years’ incarceration that included
resolution of another, unrelated case. There is no evidence of record of such
an offer.
6 There is no explanation of how she became aware of the offer.
7 See Commonwealth v. Chazin, 873 A.2d 732, 735 (Pa. Super. 2005) (in
order to prevail on such a claim the defendant must show, “(1) an offer for a
plea was made; (2) trial counsel failed to inform him of such offer; (3) trial
counsel had no reasonable basis for failing to inform him of the plea offer; and
(4) he was prejudiced thereby.”) (emphasis added).
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Accordingly, her vague statement of prejudice is further diminished by the
fact it has no relationship to her actual defense.
Golphin is not entitled to relief on this issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/19
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