Com. v. Carter, R.

J-S06029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT CARTER,
Appellant No. 1195 EDA 2016
Appeal from the PCRA Order entered March 24, 2016,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0007203-2011.
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY RANSOM, J.: FILED MAY 16, 2017
Appellant, Robert Carter, appeals pro se from the March 24, 2016
order denying his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The pertinent facts and procedural history, as gleaned from our review
of the certified record, are as follows. On April 5, 2011, police observed
Appellant operating a stolen car, activated their lights and sirens, and began
following the vehicle. Instead of pulling over, Appellant ran a stop sign and
accelerated. A high speed-chase ensued, which ultimately ended when
Appellant hit another car and crashed into a building. Appellant’s passenger,
who was his good friend, was ejected upon impact and died at the scene.
*Former Justice specially assigned to the Superior Court.
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The person in the other car also suffered serious injury, as well as three
pedestrians who were standing on the sidewalk waiting for a bus.
On February 13, 2013, a jury convicted Appellant of third-degree
murder, homicide by vehicle, and related charges. On April 19, 2013, the
trial court sentenced Appellant to an aggregate term of twenty-five to fifty
years of imprisonment. Appellant filed a post-sentence motion, which the
trial court denied on August 6, 2013. Appellant timely filed an appeal to this
Court, in which he challenged the sufficiency and weight of the evidence
supporting his convictions, as well as a claim that the trial court abused its
discretion in allowing the Commonwealth to introduce evidence that, on
three prior occasions, he had fled from police while operating a motor
vehicle or ATV. In an unpublished memorandum filed on July 15, 2014, we
rejected Appellant’s claims and, therefore, affirmed his judgment of
sentence. Commonwealth v. Carter, 105 A.3d 791 (Pa. Super. 2014)
(unpublished memorandum).
Appellant timely filed a PCRA petition in which he raised certain claims
of ineffective assistance of trial counsel. After a change of appointed-
counsel, PCRA counsel ultimately filed a “no-merit” letter and petition to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).1
____________________________________________
1
Originally-appointed counsel filed a Turner/Finley letter, that the PCRA
court deemed inadequate. The PCRA court permitted that counsel to
(Footnote Continued Next Page)
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On February 22, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s PCRA petition without a hearing. Appellant did
not file a response. By order entered March 24, 2016, the PCRA court
dismissed Appellant’s PCRA petition. This appeal follows. Both Appellant
and the PCRA court have complied with Pa.R.A.P. 1925.
Within his brief, Appellant asserts that the PCRA court erred in denying
his PCRA petition without first holding an evidentiary hearing because he
raised a genuine issue of material fact as to whether trial counsel was
ineffective for failing to: 1) object to the nolle prosequi of the involuntary
manslaughter charge and request that the jury be instructed on this lesser-
included offense; 2) investigate and present witnesses on his behalf; 3)
object to his removal from the courtroom without the trial court conducting a
colloquy to ensure that the waiver of his presence was knowing and
intelligent; 4) object to the autopsy report when the coroner who conducted
the autopsy did not testify at trial; 5) object when inadmissible hearsay was
introduced at trial and submitted to the jury to consider in establishing
malice; 6) object when evidence of prior bad acts was admitted where such
bad acts were actually dismissed and therefore inadmissible; and 7) to file a
pre-trial motion asserting the violation of his speedy trial rights. See
Appellant’s Brief at 4. We will address these claims in the order presented.
_______________________
(Footnote Continued)
withdraw and appointed PCRA counsel. See PCRA Court Opinion, 6/20/16,
at 1-2.
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When examining a post-conviction court's grant or denial of relief, we
are limited to determining whether the court's findings were supported by
the record and whether the court's order is otherwise free of legal error.
Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We
will not disturb findings that are supported in the record. Id. The PCRA
provides no absolute right to a hearing, and the post-conviction court may
elect to dismiss a petition after thoroughly reviewing the claims presented
and determining that they are utterly without support in the record. Id.
Because Appellant’s claims challenge the stewardship of trial counsel,
we apply the following principles. 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 reasonably probability that the outcome
of the challenged proceedings 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).
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In assessing a claim of ineffectiveness, when it is clear that appellant
has failed to meet the prejudice prong, the court may dispose of the claim
on that basis alone, without a determination of whether the first two prongs
have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.
1995). Counsel will not be deemed ineffective if any reasonable basis exists
for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.
1994). Even if counsel had no reasonable basis for the course of conduct
pursued, however, an appellant is not entitled to relief if he fails to
demonstrate the requisite prejudice which is necessary under Pennsylvania's
ineffectiveness standard. Douglas, 645 A.2d at 232.
Appellant first claims that trial counsel was ineffective for failing to
object to the withdrawal of the involuntary manslaughter charge and for
failing to request that the jury be instructed on that crime because it is a
lesser included offense of homicide by vehicle.
This Court has summarized:
There is no requirement for the trial judge to instruct
the jury pursuant to every request made to the court. In
deciding whether a trial court erred in refusing to give a
jury instruction, we must determine whether the court
abused its discretion or committed an error of law.
A defendant is entitled to a [jury] charge on a lesser-
included offense only where the evidence has been made
an issue in the case and the evidence would
reasonably support such a verdict. Instructions
regarding matters which are not before the court or which
are not supported by the evidence serve no purpose other
than to confuse the jury.
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Commonwealth v. Phillips, 946 A.2d 103, 110 (Pa. Super. 2008)
(citations omitted). “An offense may be considered a lesser included offense
if each and every element of the lesser offense is necessarily an element of
the greater offense.” Commonwealth v. Brandon, 79 A.3d 1192, 1194
(Pa. Super. 2013).
Here, the PCRA court determined that the evidence presented would
not support an involuntary manslaughter conviction:
In order to establish that [Appellant] was guilty of
homicide by vehicle, the Commonwealth was required to
prove that [he] caused the death of [the victim] by acting
recklessly or with gross negligence, while violating any law
or ordinance applying to the operation of a motor vehicle.
75 Pa.C.S. § 3732; Commonwealth v. Pedota, 64 A.3d
634 636 (Pa. Super. 2013). In order to establish that
[Appellant] was guilty of involuntary manslaughter, the
Commonwealth would have to prove that [he] caused the
death of [the victim] by doing an act in a reckless or
grossly negligent manner. 18 Pa.C.S. § 2504(a); Pedota,
64 A.3d at 636. Therefore, homicide by vehicle includes all
the elements of involuntary manslaughter, plus the
additional requirement that the death was caused while
violating the [Vehicle Code]. Accordingly, trial counsel
would have been entitled to request that involuntary
manslaughter be submitted to the jury if a reasonable
juror could have found [Appellant] guilty of involuntary
manslaughter but not guilty of homicide by vehicle.
The evidence at trial, however, clearly established the
contrary. In particular, there was overwhelming evidence
that [Appellant’s] reckless and grossly negligent conduct
consisted of multiple violations of the [Vehicle Code].
***
[T]he evidence demonstrated that [Appellant] recklessly
and with gross negligence caused [the victim’s] death by
driving through a red light at a high rate of speed, thereby
violating the laws applying to a motor vehicle. Because no
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reasonable juror could have found [Appellant] guilty of
involuntary manslaughter, but not guilty of homicide by
vehicle, any request by trial counsel to submit the
involuntary manslaughter charge to the jury would have
been rejected.
PCRA Court Opinion, 6/20/16, at 6-7.
Our review of the evidence presented at trial supports the PCRA
court’s conclusions. Trial counsel cannot be found ineffective for pursuing a
meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.
2003) (en banc). Thus, Appellant’s first issue fails.
In his second issue, Appellant claims that trial counsel was ineffective
for failing to call the victim’s sister to testify on his behalf. See Appellant’s
Brief at 15. In order to establish that trial counsel was ineffective for failing
to investigate and/or call a witness at trial, a PCRA petitioner must
demonstrate that:
(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the
witness was prepared to cooperate and would have testified
on appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005).
During the final day of the proceedings, trial counsel informed the
court that she had been approached by members of the victim’s family, and
that the victim’s sister “has requested to testify during the trial regarding
the relationship between the two.” N.T., 2/13/13, at 82. The trial court
agreed with trial counsel’s assessment that such testimony was
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“inappropriate” and more relevant as a victim impact statement at
sentencing. Id. The trial court then informed the victim’s sister that she
had no relevant evidence for trial, but that she could testify at sentencing.
See id. at 83. Given these circumstances, the only Hall factor at issue is
whether the absence of testimony from the victim’s sister prejudiced
Appellant. According to Appellant, “[h]ad the jury been provided the
opportunity to consider [his] friendship with the [victim] coming from a
victim herself, a reasonable probability exists that the results would have
been different.” Appellant’s Brief at 15.
The PCRA court found no merit to Appellant’s claim:
[A]ny evidence regarding [Appellant’s] relationship with
the [victim] would have been irrelevant. The [victim] was
a passenger in a car being recklessly driven by [Appellant]
at the time of the crash that led to the charges in this
case. There was never any contention that [Appellant]
intended to harm the [victim]. Therefore, evidence of a
close relationship between [Appellant] and the [victim]
would not, in any manner, have refuted the
Commonwealth’s case.
PCRA Court Opinion, 6/20/16, at 8. We agree. Moreover, after reading the
trial transcripts, it is clear that the jury was aware, via arguments made by
both the prosecutor and trial counsel, that Appellant and the victim were
good friends. See, e.g., N.T., 2/11/13, at 223 (in opening to the jury, the
prosecutor asserts the circumstances ultimately resulting in the victim’s
death “started out for [Appellant] and his friend as a joy ride in a stolen
vehicle”); N.T., 2/13/13 at 90 (in closing to the jury, trial counsel states that
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“two young guys out in a fancy Acura, driving around for a joy ride” ends up
in a tragic accident where “one of the people in the car, who is good friends
with [Appellant], is deceased”). Once again, trial counsel cannot be faulted
for failing to pursue this meritless claim. Loner, supra.
In his third issue, Appellant asserts that trial counsel was ineffective
for failing to object when he was removed from the courtroom without the
trial court first conducting a waiver colloquy. We agree with the PCRA
court’s conclusion that this claim is waived because it does not appear in
Appellant’s pro se petition, or in a Pa.R.Crim.P. 907 response, and is thus
inappropriately raised for the first time on appeal. See generally, Pa.R.A.P.
302(a); Commonwealth v. Rigg, 84 A.3d 1080, 1084-85 (Pa. Super.
2014). Appellant’s attempt to circumvent waiver by alleging a “layered
ineffectiveness claim” with regard to his first-court appointed post-conviction
counsel, see n.1, is unavailing. See Appellant’s Brief at 16. The fault for
failing to raise this claim via his original petition, or in response to the PCRA
court’s Pa.R.Crim.P. 907 notice, lies wholly upon Appellant himself.
Moreover, Appellant’s claim is specious. A review of the record reveals
that the only reason no colloquy was conducted was because Appellant
refused to respond to the trial court’s attempt to provide him with one. See
N.T., 2/13/13, at 41-42. Nevertheless, the record also establishes that
Appellant was moved to the back of the courtroom where he could hear the
proceedings, and that he decided to return to the courtroom prior to the
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court’s charge to the jury. See id., at 45-47; 142-143. Thus, Appellant’s
third issue fails.
In his fourth issue, Appellant argues that trial counsel was ineffective
for failing to object to the admission of the autopsy report introduced
through the testimony of a forensic pathologist, because the report was
introduced to establish an element of the crimes charged, but the author of
the report did not testify. According to Appellant, his inability to cross-
examine the coroner who conducted the autopsy violated his rights under
the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.
See Appellant’s Brief at 17-19.
The PCRA court found Appellant’s ineffectiveness claim to lack
arguable merit:
Under Pennsylvania law, a medical examiner who did
not perform the autopsy at issue in the case may still
testify as to the cause and manner of death provided that
the testifying expert is qualified and sufficiently informed
so as to be able to render his or her own opinion.
Commonwealth v. Buford, 101 A.3d 1182, 1198 (Pa.
Super. 2014) (citing Commonwealth v. Ali, 10 A.3d 282,
306-307 (Pa. 2010)). Here, Dr. Allison Hunt, performed
[the victim’s] autopsy, but was no longer employed by the
Philadelphia Medical Examiner’s Office by the time of
[Appellant’s] trial. N.T., 2/13/13 at 55. As a result, Dr.
Aaron Rosen reviewed Dr. Hunt’s report, as well as
autopsy photos and toxicology reports. N.T., 2/13/13 at
54-55. Dr. Rosen testified that, after reviewing these
materials, he formed his own, independent opinions and
conclusions regarding [the victim’s] death. N.T., 2/13/13
at 55. Although Dr. Hunt’s report was reviewed by Dr.
Rosen and admitted into evidence, Dr. Rosen never
revealed any of Dr. Hunt’s opinions or conclusions and the
report was never presented to the jury. Because Dr.
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Rosen reached his own independent conclusions regarding
cause and manner of death after reviewing the materials in
the file, his opinions were properly admitted even though
Dr. Hunt had performed the autopsy. Buford, 101 A.3d at
1198.
PCRA Court’s Opinion, at 9-10. We agree with the PCRA court’s conclusions
that Appellant’s underlying claim regarding the autopsy report is meritless.
Thus, trial counsel cannot be deemed to be ineffective for failing to object to
this admissible evidence. Loner, supra.
In his fifth issue, Appellant argues that trial counsel was ineffective for
failing to object when inadmissible hearsay was introduced to the jury to
consider in establishing malice. According to Appellant:
[He] has a 5th Amendment Right to remain silent and
not be a witness against himself. This right was stripped
when the Commonwealth called Matthew Gavula to testify.
Gavula testified to a statement purportedly made by
Appellant which the jury was instructed to consider in
determining the mens rea of Appellant on the most serious
offense, third degree murder. Trial counsel failed to object
and thus, prejudiced Appellant as he was convicted on
inadmissible hearsay.
Appellant’s Brief at 19.
Matthew Gavula was one of the first responders that spoke with
Appellant upon arriving at the crash scene. Mr. Gavula was the first witness
called by the Commonwealth and testified that when he asked Appellant
what happened, a “[t]ypical question on an accident scene,” Appellant
responded, “They were chasing me.” N.T., 2/11/13, at 268. Mr. Gavula
then asked Appellant to whom he was referring, and Appellant stated “[t]he
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police.” Id. Trial counsel did not object to this testimony, and she did not
question Mr. Gavula further regarding Appellant’s statement.
The PCRA court found no merit to Appellant’s claim because Mr.
Gavula’s testimony was not inadmissible:
Out-of-court statements made by a party offered
against that party at trial are admissible under an
exception to the hearsay rule. Pa.R.E. 803(25). As the
statement at issue was made by [Appellant], and offered
by the Commonwealth, its admission did not contravene
the hearsay rule. Id.
PCRA Court Opinion, 6/20/16, at 10-11. We agree with the PCRA court’s
conclusion. Appellant’s statement to Mr. Gavula qualified as an “admission
of a party opponent” under the exception to the hearsay rule. See Pa.R.E.
803(25); Commonwealth v. Weiss, 81 A.3d 767, 800 (Pa. 2013)
(explaining witness’s testimony that the defendant threatened to shoot the
police if they knocked at his door was admissible under Pa.R.E. 803(25)).
Thus, because trial counsel cannot be deemed ineffective for failing to raise
a meritless objection, Loner, supra, Appellant’s fifth issue fails.
In his sixth issue, Appellant argues that trial counsel was ineffective
for failing to object to the Commonwealth’s admission of evidence of a prior
bad act committed by Appellant in 2007 because that proceeding was
dismissed in its entirety. See Appellant’s Brief at 20. Our review of the
record supports the PCRA court’s conclusion that this claim is waived
because it was not raised in Appellant’s pro se petition or in response to the
PCRA court’s Pa.R.Crim.P. 907 notice. See PCRA Court Opinion, 6/20/16, at
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11 (citing Rigg, supra). Nevertheless, we note that this Court rejected
Appellant’s challenge to the admissibility of these prior incidents into
evidence. See Carter, supra, memorandum opinion at 10-13. Thus, the
claim has been previously litigated under the PCRA, see 42 Pa.C.S.A. §
9544(a), and Appellant’s sixth claim fails.
In his final issue, Appellant asserts that trial counsel was ineffective for
failing to file a pretrial motion asserting that his right to a speedy trial under
Pa.R.Crim.P. 600 was violated. Once again, our review of the record
supports the PCRA’s court’s conclusion that this claim was not preserved
below and, therefore, is inappropriately being raised for the first time on
appeal. See PCRA Court Opinion, 6/20/16, at 11 (citing Rigg, supra).
In sum, Appellant’s seven claims of trial court’s ineffectiveness are
either without merit, refuted by the record, or waived. Thus, the PCRA court
did not err or abuse its discretion in failing to schedule an evidentiary
hearing. We therefore affirm the PCRA court’s order dismissing Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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