Com. v. Chhea, R.

J-S33028-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICKY CHHEA, :
:
Appellant : No. 2043 EDA 2014
Appeal from the PCRA Order June 13, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0012794-2008
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 23, 2015
Ricky Chhea (“Chhea”) appeals pro se from the June 13, 2014 order
entered by the Philadelphia County Court of Common Pleas dismissing his
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546, (“PCRA”) without a hearing. Upon review, we affirm.
When deciding Chhea’s direct appeal, we summarized the factual
history of this case as follows:
On July 27, 2008 the decedent, Ratseiey Yun,
[Chhea] and [Chhea]’s co-defendant, Sophana
Sovann were neighbors in the 1800 block of South
15th Street in Philadelphia, PA. The circumstances
leading to the shooting death of Yun center around
bad blood resulting from Sovann’s departure from
the neighborhood gang, the TRGs, of which Sovann
and Yun were members.
Sovann’s departure from the TRGs in 2007
angered Yun. Thereafter, according to Sovann’s
defense, Yun embarked on a course of harassment
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against him and his family in an effort to force
Sovann back into the TRGs. In retaliation, on the day
of the shooting, Sovann, along with [Chhea]
obtained guns from Gregorio Chambers, aka,
“Bayah.” A fourth individual, Johnny Un, assisted the
trio by luring the decedent to the location where
[Chhea] and his cohorts were waiting to shoot him. A
total of sixteen (16) shots were fired mortally
wounding the decedent in the chest, stomach, and
torso.
[Chhea] was subsequently arrested and charged
with third-degree murder, criminal conspiracy, and
numerous violations of the Uniform Firearms Act
(UFA). On January 5, 2010, [Chhea] proceeded to a
jury trial alongside his co-defendant Sophana
Sovann. Following trial, the jury found [Chhea] guilty
of [third-degree murder, criminal conspiracy, and
possession of a firearm by a minor] on January 14,
2010 and sentencing was deferred pending the
preparation of a pre-sentence investigation report. …
[T]he trial court sentenced [Chhea] to an aggregate
term of 26 to 52 years’ imprisonment on March 26,
2010.
Commonwealth v. Chhea, 1319 EDA 2010, 1-2 (Pa. Super. Sept. 14,
2011) (unpublished memorandum) (internal citations, formatting, and
footnotes omitted).
Chhea filed a timely direct appeal and this Court affirmed his judgment
of sentence on September 14, 2011. The Pennsylvania Supreme Court
denied his request for allowance of appeal on March 29, 2012. Chhea filed a
timely pro se PCRA petition on September 17, 2012. Therein, Chhea raised
boilerplate claims without specifying any actual error and requested “[the]
right to amend the PCRA petition upon the granting of [his] motion for
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transcripts and discovery.” Pro Se PCRA Petition, 9/17/12, ¶¶ 6, 12. He
included the same request in the memorandum of law filed in conjunction
with his PCRA petition, which otherwise included only hornbook law
concerning the right to relief under the PCRA and did not raise any specific
substantive claims.
The PCRA court appointed counsel. As discussed later in this decision,
appointed counsel filed a detailed no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
April 29, 2014, the PCRA court filed notice of its intention to dismiss Chhea’s
PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
On May 8, 2014, Chhea filed an objection to the PCRA court’s Rule 907
notice and PCRA counsel’s Turner/Finley no-merit letter. He concomitantly
filed a motion seeking the notes of testimony from his trial and “legal
materials,” which Chhea defined as discovery from his trial and documents
relating to his direct appeal in possession of his trial counsel and/or PCRA
counsel. Motions Related to PCRA Petition, 5/8/14, at 2. Chhea appended
to the motion/objection a series of letters that he had written to trial
counsel, PCRA counsel and the PCRA court judge, requesting this information
dating back to October 24, 2011, with the final letter, addressed to the
attention of the PCRA court, dated February 23, 2014. Nowhere in any of
these materials did Chhea make any substantive argument regarding his
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entitlement to PCRA relief, stating only that he required the requested
documents to discern if he is in fact entitled to relief. On June 17, 2014, the
PCRA court dismissed Chhea’s PCRA petition without a hearing and granted
PCRA counsel’s motion to withdraw.
Chhea filed a timely pro se notice of appeal and complied with the
PCRA court’s order for the filing a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Chhea raises the
following issues for our review:
1. The PCRA court abused its discretion as the appeal
before the court is incomplete due to the denial of
the “right to appeal” under Article V, § 9, of the Pa.[]
Constitution, where Chhea is unable to amend said
PCRA petition without the very same documents,
“legal materials[,]” that are in his counsel(s) [sic]
possession. A fact thoroughly convey[ed] to [the
PCRA] court by [Chhea] in his first objection[.]
2. The PCRA court abused its discretion when it denied
said motion(s) for discovery; previous appeals; and
notes of testimony; “legal materials”, [sic] to amend
said PCRA petition, challenging his PCRA counsel’s
“limited scope of review” and/or at minimum make
a[n] informed choice whether to continue with his
appeal. Again, this fact was clearly expressed to the
PCRA court in the first objection[.]
3. The PCRA court abused its discretion when it denied
said incomplete PCRA petition prematurely, when it
became fully aware that Chhea could not amend said
petition without the very documents, “legal
materials”: discovery; previous appeals; and notes
of testimony, any movant would have to exact an
appeal. Which [sic] is in direct contradiction to a
counseled litigant’s ability to exercise the “right to
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appeal” with the aforementioned items Chhea has
requested[.]
4. The PCRA court denied Chhea due process[] where
the circumstances involving the amending of the
incomplete PCRA petition[] revolved around
notification that [Chhea] could not rightfully cho[o]se
to proceed pro se, where counsel(s), and the PCRA
court, refuse[d] Chhea’s request for [“]access to the
courts[”] through “legal materials” in possession of
his counsel(s). The same “legal materials” both
counsel(s) have had to draw their own conclusions
as to Chhea’s constitutional rights[.]
Chhea’s Brief at 4.
Although separated into four claims, the issues raised by Chhea boil
down to two arguments: (1) PCRA counsel did not conduct a review of the
entire record, rendering his withdrawal from the case “premature,” and (2)
the PCRA court erred and abused its discretion by failing to grant his request
that his prior counsel provide him with the notes of testimony and “legal
materials.” In its opinion authored pursuant to Pa.R.A.P. 1925(a), the PCRA
court found that counsel’s Turner/Finley no-merit letter was “thorough and
exhaustive” and dismissed Chhea’s PCRA petition based upon his failure “to
set forth any act or omission of trial counsel that would form the basis for an
ineffective assistance claim or any other allegation that entitles him to PCRA
relief.” PCRA Court Opinion, 8/28/14, at 4.
Our standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Davis,
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86 A.3d 883, 887 (Pa. Super. 2014). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id.
We begin by addressing Chhea’s claim that the PCRA court
prematurely permitted PCRA counsel to withdraw based upon PCRA counsel’s
failure to review the entire record. Pursuant to Turner/Finley, PCRA
counsel must conduct an independent review of the record, addressing each
of the issues the petitioner wishes to raise and explaining why these issues
are meritless. Commonwealth v. Freeland, 106 A.3d 768, 774-75
(Pa. Super. 2014). The record reflects that PCRA counsel did just that.
Chhea raised no issues of substance in his pro se PCRA petition regarding his
entitlement to PCRA relief, and there is no indication in any of the
correspondence between Chhea and PCRA counsel that Chhea suggested any
issues that he wished to raise in his PCRA petition. Despite this, PCRA
counsel addressed each of the boilerplate contentions raised in Chhea’s pro
se PCRA petition1 and concluded that there is no record support for his
1
Chhea filed a form-based pro se PCRA petition, which allows a prisoner to
check boxes indicating the reasons he or she believes relief is due. The
bases included in the form mirror the provisions of 42 Pa.C.S.A. §
9543(a)(2), governing eligibility for relief under the PCRA. Here, Chhea
checked the following boxes, stating he was eligible for relief because of:
(I) A violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States
which, in the circumstances of the particular case, so
undermined the truth-determining process that no
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claims. No-Merit Letter, 3/6/14, at 7. PCRA counsel further reviewed
several issues that were included in Chhea’s 1925(b) statement on direct
appeal but not advanced before the Superior Court for decision, and despite
Chhea’s waiver of these issues for review in the PCRA context, addressed
each claim and concluded that Chhea is not entitled to relief. Id. at 8-9.
There is nothing in the record to support Chhea’s claim that PCRA counsel’s
review of the record was deficient or truncated. As such, no relief is due.
Relying on precedent from our Supreme Court, Chhea further contends
that to secure his right to “meaningful appellate review,” the PCRA court was
required to provide him with “a full transcript or other equivalent picture of
the trial proceedings.” Chhea’s Brief at 9 (quoting Commonwealth v.
Shields, 383 A.2d 844, 846 (Pa. 1978)). Our review of the record reveals
reliable adjudication of guilt or innocence could have
taken place.
(II) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place.
* * *
(V) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available
and would have changed the outcome of the trial if it
had been introduced.
(VI) The imposition of a sentence greater than the lawful
maximum.
Pro Se PCRA Petition, 9/17/12, ¶ 4.
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that Chhea was not entitled to the requested documentation. Shields and
its progeny address cases wherein proceedings or portions of proceedings
were never transcribed and are not part of the certified record on appeal.
See, e.g., Shields, 383 A.2d at 845 (stating that the recording of the
Commonwealth’s closing argument – which the defense alleges was
prejudicial – was lost in the mail and never transcribed, leaving defense
counsel without a record of the closing remarks for purposes of filing post-
verdict motions and an appeal). The record reflects that PCRA counsel was
in possession of the items Chhea desired and that PCRA counsel reviewed
these items prior to filing his Turner/Finley no-merit letter. See No-Merit
Letter, 3/6/14, at 1 (indicating that PCRA counsel reviewed Chhea’s pro se
PCRA petition and accompanying memorandum of law, all of the transcripts,
the trial court’s 1925(a) opinion on direct appeal, the Superior Court’s
September 14, 2011 memorandum decision, all of the docket entries “and
other such documents”). Thus, although Chhea himself did not have the
notes of testimony from trial, the defense was in possession of these
materials.
Although Chhea is now representing himself on appeal, simply because
he requested the notes of testimony does not mean he was necessarily
entitled to them. In relation to the Shields decision, our Supreme Court has
held that “[t]o be entitled to relief due to the incompleteness of the trial
record the defendant must make some potentially meritorious challenge
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which cannot be adequately reviewed due to the deficiency in the
transcript.” Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)
(emphasis added). We find analogous this Court’s decision in
Commonwealth v. Ballem, 482 A.2d 1322 (Pa. Super. 1984). In that
case, Ballem, an indigent defendant proceeding pro se, filed a request before
the trial court for copies of the notes of testimony from previous proceedings
and other portions of the docket, which the trial court denied. Id. at 1323.
On appeal to this Court, we recognized that the United States Supreme
Court has held “that constitutional due process and equal protection require
that a criminal defendant be afforded copies of his trial transcripts in order
to effectively prosecute an appeal,” id. (citing Griffin v. Illinois, 351 U.S.
12 (1956)), and that our Supreme Court has made it the trial court’s
responsibility to provide these documents to the pro se indigent defendant.
Id. We concluded, however, that to be entitled to production of the
documents requested, there must be an action pending before the lower
court raising claims that “constitute[] compelling reasons warranting a grant
of [the] petition.” Id. at 1324. There was no action pending before the
lower court at the time of Ballem’s request for production of the notes of
testimony and other record documents – Ballem only stated that he wished
to raise claims of trial counsel’s ineffectiveness in a petition for post
conviction relief. Id. As such, this Court found no abuse of discretion in the
lower court’s denial of Ballem’s request. Id.
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In the case at bar, there was a petition for PCRA relief pending before
the PCRA court at the time Chhea requested the notes of testimony and
“legal materials.” As in Ballem, however, there were no substantive claims
pending before the court for its assessment – only bald, boilerplate
statements that he satisfied the statutory requirements to be eligible for
relief under the PCRA and that he desired the production of the requested
documents to determine if there were specific arguments may entitle him to
relief. See supra, n.1; 42 Pa.C.S.A. § 9543(a)(2).
The above law makes clear that we do not require the production of
documents for a veritable fishing expedition. Chhea articulated no claim –
let alone a potentially meritorious claim – constituting compelling reasons
why the PCRA court should grant his request for the production of
documents. See Albrecht, 720 A.2d at 701; Ballem, 482 A.2d at 1324.
As such, we have no basis upon which to reverse the PCRA court’s decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2015
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