Com. v. Broadwater, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ERIC SAMUEL BROADWATER
Appellant No. 587 MDA 2017
Appeal from the PCRA Order March 23, 2017
In the Court of Common Pleas of Fulton County
Criminal Division at No: CP-29-CR-0000161-2014
BEFORE: STABILE, MOULTON, and STRASSBURGER, * JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 15, 2017
Appellant, Eric Samuel Broadwater, appeals from the March 23, 2017
order entered in the Court of Common Pleas of Fulton County (“PCRA court”)
denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
Following a jury trial on May 28, 2015, during which Appellant was
represented by Philip Harper, Esq. (“Attorney Harper”), Appellant was
convicted of two counts of rape.1 Appellant was sentenced to an aggregate
period of 72-240 months’ incarceration on September 8, 2015. Appellant did
not file any post-sentence motions or a direct appeal.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3121(a)(1), (c).
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On January 26, 2016, Appellant filed a request for new counsel,
asserting that Attorney Harper was ineffective. On January 29, 2016, the
PCRA court, viewing Appellant’s request as a first PCRA petition, appointed
Michael Palermo, Jr., Esq. (“Attorney Palermo”), to represent Appellant.
Appellant, pro se, filed a PCRA petition on February 8, 2016, which the PCRA
court took no action on, and forwarded the filing to Attorney Palermo. On
April 21, 2016, Attorney Palermo filed a Turner/Finley2 letter seeking
withdrawal. The PCRA court granted Attorney Palermo’s request to withdraw
on April 29, 2016, and issued a Pa.R.Crim.P. 907 notice to Appellant. On May
20, 2016, Appellant filed a response to the PCRA court’s Rule 907 notice. On
June 15, 2016, the PCRA court, upon review of Appellant’s response to the
Rule 907 notice, appointed Shane Kope, Esq., as counsel for Appellant.
On October 11, 2016, Appellant, through counsel, filed an amended
PCRA petition alleging ineffective assistance of counsel, Attorney Harper, for
failing to file a direct appeal and failing to call character witnesses at the time
of sentencing. On October 31, 2016, the Commonwealth filed a response to
the PCRA petition. The PCRA court held a hearing on December 13, 2016,
during which Attorney Harper and Appellant testified. On March 23, 2017, the
PCRA court issued an opinion and order denying Appellant’s amended PCRA
petition. Appellant filed a timely notice of Appeal on April 3, 2017. On April
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2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A2d 213 (Pa. Super. 1988) (en banc).
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5, 2017, the PCRA court directed Appellant to file a concise statement of errors
complained of on appeal. Appellant complied on April 26, 2017, and the PCRA
court issued a Pa.R.A.P. 1925(a) opinion on May 4, 2017.
Appellant raises two issues on appeal, which we repeat verbatim.
[I.] Did the [PCRA court] err by denying Appellant’s amended
PCRA petition when the [PCRA court] concluded that
[Appellant] never contacted [Attorney Harper] regarding
[Appellant’s] desire to file an appeal?
[II.] Did the [PCRA court] err by denying Appellant’s amended
PCRA petition when the [PCRA court] concluded that the
[Appellant] failed to adequately inform [Attorney Harper] of
the character witnesses he wanted to call at sentencing.
Appellant’s Brief at 4.
Our standard of review of an order denying a PCRA petition is well
established.
The findings of a post-conviction court, which hears evidence and
passes on the credibility of witnesses, should be given great
deference. We will not disturb the findings of the PCRA court if
they are supported by the record, even where the record could
support a contrary holding. Commonwealth v. Sullivan, 472 P.
129, 371 A.2d 468, 476 (Pa. 1977). This Court’s scope of review
is limited to the findings of the PCRA court and the evidence on
the record of the PCRA court’s hearing, viewed in the light most
favorable to the prevailing party. See, e.g., Commonwealth v.
Meadius, 582 Pa. 174, 870 A.2d 802, 805 (PA. 2005).
Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006). “It is well
established that counsel is presumed effective, and a [PCRA] petitioner bears
the burden of proving ineffectiveness.” Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 779-80 (Pa. Super. 2015) (en banc) (quoting
Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009) (alteration in
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original) (additional citations omitted)). “To prevail on an [ineffective
assistance of counsel] claim, a PCRA petitioner must plead and prove by a
preponderance of the evidence that (1) the underlying claim has arguable
merit; (2) counsel had no reasonable basis for acting or failing to act; and (3)
the petitioner suffered resulting prejudice.” Id. at 780 (citations omitted). If
the petitioner fails to meet any of the Pierce3 prongs, the claim fails. Id.
However, the failure to file a requested direct appeal constitutes per se
ineffective assistance of counsel. See Commonwealth v. Lantzy, 736 A.2d
564, 572 (Pa. 1999).
Appellant’s first argument is that his testimony at the PCRA hearing
establishes that he requested a direct appeal to be filed on his behalf by
Attorney Harper. See N.T. PCRA Hearing, 12/13/16, at 14, 25-26. He further
argues that Attorney Harper’s failure to file a requested direct appeal
constitutes per se ineffective assistance of counsel. However, Appellant
neglects to note that Attorney Harper provided conflicting testimony on the
matter. See id. at 40, 44-45. The PCRA court found Attorney Harper’s
testimony credible and the findings of the PCRA court are supported by the
record. Thus, Appellant’s first claim fails.
Appellant’s second issue is that Attorney Harper was ineffective for
failing to call character witnesses at the time of sentencing, specifically Alice
Cutchall, Patricia Miller, Dulce Hall, and Dillon Burger. Appellant argues that
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3 Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
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he credibly testified at the PCRA hearing that he provided Attorney Harper
with the contact information for these four individuals prior to his sentencing
hearing. However, once again Appellant fails to reconcile this with the
conflicting testimony by Attorney Harper. See N.T. PCRA Hearing, 12/13/16,
at 42. Attorney Harper testified that he did not receive any contact
information for Dulce Hall or Dillon Burger, and his files indicated that he does
not have their contact information. Id. The PCRA court found Attorney Harper
credible on this point; therefore, the claim fails as to Dulce Hall and Dillon
Burger.
With regards to Attorney Harper’s decision to not call Alice Cutchall and
Patricia Miller, Attorney Harper testified that
they were there to show that he had somebody supporting him,
behind him. Their characterization of [Appellant] was not
flattering. It wasn’t bad. It wasn’t flattering. They indicated to
me in our conversations that he had been irresponsible. He put
things off. He didn’t take things seriously and that you know, that
was one of the difficulties that they had had with him throughout
-- well, his life since he’s been with them and that -- and that it
was clearly that they were here to show that he had support, not
to say that he was such a wonderful person, although I think they
did obviously love him.
Id. at 43. The PCRA court found Attorney Harper credible, and therefore he
had an objectively reasonable basis for not calling Alice Cutchall and Patricia
Miller. “Generally, where matters of strategy and tactics are concerned,
counsel’s assistance is deemed constitutionally effective if he chooses a
particular course that had some reasonable basis designed to effectuate his
client’s interests.” Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa.
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2010) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)).
Thus, Appellant’s claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2017
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