Com. v. Wongus, T.

J-S22029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE WONGUS :
:
Appellant : No. 1775 EDA 2021
Appeal from the PCRA Order Entered June 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011899-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE WONGUS :
:
Appellant : No. 1776 EDA 2021
Appeal from the PCRA Order Entered June 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014628-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE WONGUS :
:
Appellant : No. 1777 EDA 2021
Appeal from the PCRA Order Entered June 22, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000177-2012
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
J-S22029-22
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 1, 2023
In these consolidated appeals, Terrance Wongus (Appellant) appeals
from the orders entered in the Philadelphia Court of Common Pleas denying
his petition under the Post-Conviction Relief Act (PCRA)1 at three docket
numbers.2 On appeal, he alleges trial, appellate, and former PCRA counsel
were ineffective for failing to: (1) perfect an appeal to the Pennsylvania
Supreme Court; (2) motion for a mistrial after certain testimony, and (3) raise
a claim of after-discovered evidence. We affirm.
A detailed recitation of the facts is not necessary for this appeal. Briefly,
this matter stems from a string of robberies and thefts which occurred in
Philadelphia between November 2010, and April 2011. Police eventually
developed Appellant as a suspect for these crimes, believing he stole two
rental vehicles and robbed five parking lot attendants — four while using a
firearm — during this period. Appellant was subsequently charged with, inter
alia, two counts of robbery, and one count each of possession of an instrument
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1 42 Pa.C.S. §§ 9541-9546.
2 Appellant filed three separate notices of appeal, one for each of the trial
court docket numbers. Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
2018) (separate notices of appeal must be filed when a single order resolves
issues arising on more than one trial court docket), overruled in part,
Commonwealth v. Young, 477 (Pa. 2021) (reaffirming that Pa.R.A.P. 341
requires separate notices of appeal when single order resolves issues under
more than one docket, but holding Pa.R.A.P. 902 permits appellate court to
consider appellant’s request to remediate error when notice of appeal is timely
filed). Appellant then filed an application for consolidation, which this Court
granted on October 14, 2021, via a per curiam order. Order, 10/14/21.
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of crime (PIC), theft by unlawful taking, and receiving stolen property.3 This
case proceeded to jury trial on April 24, 2013, where the Commonwealth
presented the testimony of, inter alia, Philadelphia Police Detective Louis
Velazquez and Philadelphia Police Officer Christopher Hulmes. At the
conclusion of trial, the jury found Appellant guilty of the above-mentioned
crimes.4 On July 10, 2013, the court sentenced Appellant to consecutive terms
of 10 to 20 years’ incarceration on each robbery conviction, and a concurrent
term of one to two years’ incarceration on his theft conviction. He received
no further penalty on the remaining charges.
On August 8, 2013, Appellant filed a timely notice of appeal, wherein he
argued, in relevant part, he was entitled to a new trial after Detective
Velazquez “referenc[ed his] past criminal conduct” during his trial testimony.
Commonwealth v. Wongus, 2357 EDA 2013 (unpub. memo. at 3, 10) (Pa.
Super. Feb. 27, 2015). A panel of this Court affirmed Appellant’s judgment
of sentence, concluding that his challenge to Detective Velazquez’s testimony
was waived for failure to timely motion for a mistrial. Id. at 10-11.
Appellant filed a timely, pro se PCRA petition on June 4, 2015, and an
amended, pro se petition on June 29, 2015, where he alleged, in pertinent
part: (1) Brian Fishman, Esquire, represented him during the appeal process,
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3 18 Pa.C.S. §§ 3701(a)(1)(ii), 907(a), 3921(a), 3925(a).
4 Appellant was found not guilty of three additional charges of robbery and
PIC, as well as several firearms charges.
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but abandoned him “at the stage[ ] of filing a Petition for Allowance of Appeal
with the Pennsylvania Supreme Court[;]” and (2) Mark Hinrichs, Esquire,
represented him at trial and failed to timely motion for mistrial after Detective
Velazquez’s testimony. Appellant’s Pro Se Petition under Post Conviction
Collateral Relief Act, 6/4/15, at 2, 5 (unpaginated); Appellant’s Pro Se
Amended Post Conviction Collateral Relief Act (“PCRA”), 6/29/15, at 3, 6
(unpaginated). David Rudenstein, Esquire, was then appointed to represent
Appellant and on May 7, 2016, filed an amended PCRA petition and brief
raising the same claims. After hearings on July 6, 2017, and May 21, 2018,
the PCRA court filed a notice of intent to dismiss his petition pursuant to
Pa.R.Crim.P. 907, to which Appellant did not file a response. On June 22,
2018, the court dismissed the petition.
Appellant filed a timely notice of appeal. However, another panel of this
Court noted that the PCRA court did not enter its June 22, 2018, order
dismissing Appellant’s petition on the docket. As such, there was no indication
when the PCRA court’s order was served upon the parties, or even that it was
indeed served upon them. Commonwealth v. Wongus, 2183 EDA 2018
(unpub. memo. at 2-3) (Pa. Super. Feb. 13, 2020), citing Pa.R.Crim.P. 907(4)
(“When the petition is dismissed without a hearing, the judge promptly shall
issue an order to that effect and shall advise the defendant by certified mail .
. . of the right to appeal from the final order . . . and of the time limits within
which the appeal must be filed.”); Pa.R.Crim.P. 114(C)(2) (docket entries of
court orders shall contain the date of receipt in the clerk’s office, the date
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appearing on the order, and the date of service). Because there was no final
appealable order on the docket, this Court quashed the appeal as premature,
and directed the clerk of courts to serve the order upon the parties in
compliance with Rules 907(4) and 114(C). Id. at 3-4. This Court also stated
Appellant had 30 days from the service of the dismissal order to file his
appeal.5 Id. at 4.
On August 24, 2021, the PCRA court filed an order stating “that the
docket . . . shall reflect that the service of this [c]ourt’s Order of Dismissal of
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5 During this time, on February 4, 2021, Appellant filed a second PCRA
petition. Appellant’s Motion for Post Conviction Collateral Relief, 2/4/21. In
this subsequent petition, he asserted that Attorney Rudenstein had passed
away but prior to his death, he did not inform Appellant that this Court
quashed his initial appeal. Appellant then requested new counsel. Id. at 3-
4. Since Appellant’s first PCRA petition was still pending because the PCRA
court still had not complied with this Court’s directive, the PCRA court was
without jurisdiction to review the second petition.
In Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), the Pennsylvania
Supreme Court held “a subsequent PCRA petition cannot be filed until the
resolution of review of the pending PCRA petition by the highest state court in
which review is sought, or upon the expiration of the time for seeking such
review.” Id. at 588. In Commonwealth v. Montgomery, 181 A.3d 359(Pa. Super. 2018), this Court clarified that the Lark rule — precluding
consideration of a subsequent PCRA petition — applied only when a prior PCRA
petition had been disposed of by the lower court and an appeal has been filed
or could still be timely filed. Id. at 363-64. Moreover, this Court held that
“PCRA courts have jurisdiction to consider multiple PCRA petitions relating to
the same judgment of sentence at the same time so long as a prior petition is
not under appellate review and, therefore, not yet final.” Id. at 367.
Due to the unique procedural posture in the present case, and in the
event the PCRA court has not disposed of Appellant’s second petition, we
remind the court to review the matter.
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[Appellant’s] PCRA Petition was mailed to [him] by certified mail/return receipt
dated June 22, 2018.” Order, 8/24/21. Appellant filed his notices of appeal
on August 26, 2021, which was within 30 days of the PCRA court order.
Accordingly, Appellant timely complied with the PCRA court’s order to file a
concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b).
Before addressing Appellant’s claims, we note that on October 7, 2021,
this Court issued a Rule to Show Cause (RTSC), stating the PCRA court’s June
22, 2018, dismissal still failed to comply with Rule 114(C)6 and directed
Appellant to explain why the appeal should not be quashed as interlocutory.
Order, 10/7/21. Appellant responded: (1) the PCRA court issued an order on
August 24, 2021, which was “clearly intended to comply” with this Court’s
prior memorandum; (2) he filed separate notices of appeal at each docket on
August 26th; (3) the PCRA court’s order substantially complied with this
Court’s directive and addressing the appeal “constitutes judicial economy[;]”
(4) he contacted the PCRA court in an attempt to have them properly docket
the dismissal, but “has limited control over the docketing matters” of the
court; and (5) the Commonwealth would not be prejudiced should this appeal
move forward on its merits. Appellant’s Response to Order to Show Cause,
10/12/21, at 1-2.
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6The RTSC noted the June 22nd docket entry failed to note service of the June
22nd order. Order, 10/7/21.
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Though the PCRA court’s order did not fully comply with this Court’s
prior directive, we agree with Appellant that it “intended” to comply. It is
apparent that Appellant previously received the PCRA court’s June 22, 2018,
order since he filed a notice of appeal within 30 days — on July 23, 2018.7
Likewise, most recently, the PCRA court entered an order on August 24, 2021,
and Appellant filed timely notices of appeal on August 26th. Under existing
case law, we may choose to overlook such deficiencies — that were not
Appellant’s fault — and find quashal inappropriate. See Commonwealth v.
Carter, 122 A.3d 388, 391 (Pa. Super. 2015) (where the clerk failed to note
service on the docket, but the defendant filed an appeal within 30 days of the
order, this Court treated the appeal as timely). Here, we will proceed to
examine Appellant’s claims under the theory that we “regard as done that
which ought to have been done.” See id.Appellant raises the following on appeal:
1. Did the PCRA court err in dismissing Appellant’s PCRA Petition
because prior direct appeal counsel was ineffective for failing
to file a Petition for Allowance of Appeal to the Pennsylvania
Supreme Court and prior PCRA counsel was ineffective in a
layered context for forgoing an evidentiary hearing without
consultation with Appellant when the Commonwealth
previously agreed to an evidentiary hearing on this issue?
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7The thirtieth day fell on a Sunday, July 22, 2018. Thus, Appellant had until
Monday, July 23, 2018, to file a timely appeal in each case. 1 Pa.C.S. § 1908
(when the last day of an appeal period falls on a Saturday or Sunday, it shall
be omitted from the computation).
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2. [Was] prior counsel ineffective and did Appellant suffer
prejudice because prior counsel failed to preserve the issue
regarding denial of Appellant’s Motion for a Mistrial when
Detective Louis Velazquez referenced Appellant’s “prior
contacts” with police implying Appellant’s prior criminality and
thereby depriving Appellant a fair trial?
3. Was prior PCRA counsel, David S. Rudenstein, Esquire,
ineffective for failing to raise newly-discovered evidence
relating to known corrupt former police officer Christopher
Hulmes who lied in Appellant’s case that Appellant had a gun
and this prejudiced Appellant in all of his cases presently at
issue?
Appellant’s Brief at 4.
We first note the relevant standard of review:
In reviewing the grant or denial of PCRA relief, an appellate court
considers whether the PCRA court’s conclusions are supported by
the record and free of legal error. . . . A PCRA court passes on
witness credibility at PCRA hearings, and its credibility
determinations should be provided great deference by reviewing
courts. . . .
Commonwealth v. Flor, 259 A.3d 891, 910 (Pa. 2021) (citations & quotation
marks omitted).
“The PCRA’s time restrictions are jurisdictional in nature, and a court
may not entertain untimely PCRA petitions.” Commonwealth v. Burton,
158 A.3d 618, 627 (Pa. 2017). Here, another panel of this Court affirmed
Appellant’s judgment of sentence on February 27, 2015. Wongus, 2357 EDA
2013. He did not file a petition for allowance of appeal. Thus, his judgment
of sentence became final on March 29, 2015, when the 30-day period to seek
review with the Supreme Court expired. 42 Pa.C.S. § 9545(b)(3). Appellant
then had one year from that date to file a PCRA petition. See 42 Pa.C.S. §
9545(b)(1). Appellant filed a pro se PCRA petition on June 4, 2015, within the
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one-year period. Attorney Rudenstein was appointed to represent Appellant
on April 15, 2016. Order, 4/15/16. Thereafter, on May 7, 2016, Appellant
filed an amended counseled petition. As such, Appellant’s petition was timely
filed, and we may proceed to address his claims on the merits.
Where a petitioner’s claims raise allegations of prior counsel’s
ineffectiveness, the law presumes counsel has been effective and it is the
responsibility of the appellant to demonstrate otherwise. See
Commonwealth v. Johnson, 179 A.3d 1153, 1158 (Pa. 2018).
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. Failure to satisfy any prong of the test will
result in rejection of the appellant’s ineffective assistance of
counsel claim.
Id. (citations and quotation marks omitted). Further, the Pennsylvania
Supreme Court has stated “a petitioner [may] raise claims of ineffective PCRA
counsel at the first opportunity, even if on appeal.” Commonwealth v.
Bradley, 261 A.3d 381, 405 (Pa. 2021).
In his first argument, Appellant avers direct appeal counsel was
ineffective where he failed to file a petition for allowance of appeal with the
Pennsylvania Supreme Court, amounting to ineffectiveness per se.
Appellant’s Brief at 9, 12-13. Further, he contests that: (1) an evidentiary
hearing was held on July 6, 2017, discussing the matter; (2) that Attorney
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Fishman was his direct appeal counsel — instead he asserts that only Todd
Mosser, Esquire, represented him at the time; and (3) that Attorney Fishman
testified at the hearing that Appellant did not request a petition for allowance
of appeal. Id. at 14. Appellant also includes in his argument an assertion
that PCRA Counsel Rudenstein was ineffective “in a layered context for
foregoing an evidentiary hearing without” consulting Appellant. Id. at 9.8
This Court has previously explained:
[T]he unjustified failure to file a requested direct appeal is
ineffective assistance of counsel per se and. . . an appellant need
not show that he likely would have succeeded on appeal in order
to meet the prejudice prong of the test for ineffectiveness.
* * *
On the other hand, “[b]efore a court will find ineffectiveness
of counsel for failing to file a direct appeal, the defendant must
prove that he requested an appeal and that counsel disregarded
that request.” Clearly, if a request to file a direct appeal is
necessary to sustain an ineffectiveness claim based upon the
failure to file a direct appeal, then such a request is also necessary
where the alleged ineffectiveness is the failure to file a petition for
allowance of appeal.
Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006) (citations
omitted).
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8 Preliminarily, we note that Appellant raises PCRA Counsel Rudenstein’s
ineffectiveness for the first time in his appellate brief. Though he did not
preserve this claim before the PCRA court, we may address this facet of his
argument under Bradley. See Bradley, 261 A.3d at 405. As such, we will
review this claim on its merits.
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Here, the PCRA court concluded Appellant failed to demonstrate that he
requested Attorney Fishman file a petition for allowance of appeal on his behalf
with the Pennsylvania Supreme Court. PCRA Ct. Op. 1/5/22, at 6.
Specifically, it stated:
[A]t the evidentiary hearing held on this issue, [Attorney Fishman]
testified credibly that he sent a letter to Appellant on February 27,
2015[,] specifically advising him of his right to seek allocator and
he [received] no response[.] The text of the letter instructed
Appellant that his appeal to the Superior Court had been denied
and that he had 30 days to file a petition [with] the Supreme
Court. According to [Attorney Fishman], the letter was sent by
regular mail to Appellant and electronically to Appellant’s brother
with whom he had been in contact. [Attorney Fishman] received
no reply from either of them, nor was the letter returned to him
as being undelivered.
Id. at 6-7.
We agree with the PCRA court’s conclusion. Contrary to Appellant’s
argument, there was a hearing on July 6, 2017, where PCRA Counsel
Rudenstein represented Appellant. Upon review of the transcripts from that
hearing, Attorney Fishman did testify to the above-mentioned statements.
See N.T. Hearing Vol. 1, 7/6/17, at 5-6. We acknowledge Appellant’s
assertion that Attorney Mosser, not Attorney Fishman, was representing him
at this juncture. It appears that both attorneys represented Appellant on
direct appeal, with Attorney Mosser entering his appearance on March 27,
2014. See Entry of Appearance, 3/27/14. The record does not reflect that
Attorney Fishman withdrew his appearance, but, instead, that he was listed
as co-counsel alongside Attorney Mosser. See Appellant’s Statement of
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Matters Complained of on Appeal, 3/27/14 (listing both attorneys as counsel
of record); Trial Ct. Op. 4/23/14, Proof of Service (forwarding the trial court’s
Rule 1925(b) opinion to Attorney Fishman).
Further, it merits mention that in his initial pro se PCRA petition and pro
se amended petition, Appellant listed Attorney Fishman as appellate counsel
responsible for filing any purported Supreme Court appeal. See Appellant’s
Pro Se Petition under Post Conviction Collateral Relief Act, 6/4/15, at 2;
Appellant’s Pro Se Amended Post Conviction Collateral Relief Act (“PCRA”),
6/29/15, at 3. Moreover, it was Appellant’s burden to call direct appeal
counsel to testify at the July 6th hearing and he called Attorney Fishman, not
Attorney Mosser.
Appellant has not demonstrated that he requested a petition for
allowance of appeal, or that PCRA Counsel Rudenstein forewent an evidentiary
hearing. N.T. 7/6/17, at 3-5. Therefore, his claims are meritless and as such,
no relief is due. See Johnson, 179 A.3d at 1158; Bath, 907 A.2d at 622.
Appellant next argues both Trial Counsel Hinrichs and both appellate
counsels were ineffective for “failing to preserve and argue” the denial of the
motion for mistrial when Detective Velazquez’s testimony deprived him of a
fair trial. Appellant’s Brief at 15. Relevant to this claim, we note the
Commonwealth presented the testimony of Detective Velazquez at trial. In
relevant part, the Detective stated that he was investigating a robbery that
occurred at a parking lot on 16th and Pine Streets in Philadelphia. N.T. Trial
(Jury) Vol. 1, 4/25/13, at 200. After speaking to the victim of this particular
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robbery, reviewing surveillance video from the parking lot, and speaking with
another detective investigating the string of parking lot robberies, Detective
Velazquez believed Appellant was the perpetrator. Id. at 201-02, 205-08,
215. While explaining how he came to suspect Appellant, the following
exchange occurred:
[Commonwealth: D]id you develop a suspect based upon the
totality of these cases?
[Detective Velazquez]: We did.
[Commonwealth]: Who did you develop as a suspect?
[Detective Velazquez: Appellant.]
[Commonwealth]: And what primarily was that based upon?
[Detective Velazquez]: Based on prior contacts.
[Trial Counsel Hinrichs]: Objection.
[Detective Velazquez]: Not prior contacts, just —
[Trial court]: Sustained. The jury will disregard that last answer.
Do you want to ask the question again[?]
[Commonwealth]: Yes. . . . Based upon your information that you
had as a part of the entire case; correct?
[Detective Velazquez]: Correct.
Id. at 215-16 (emphasis added). The next morning, Trial Counsel Hinrichs
made an oral motion for mistrial based on this testimony. N.T. Trial (Jury)
Vol. 1, 4/26/13, at 3. The trial court denied the motion, concluding it
sustained Counsel’s objection the day prior, instructed the jury to disregard
the statement, and the detective’s “fleeting comment” did not justify a
mistrial. Id. at 3-4.
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On appeal, Appellant maintains that Trial Counsel Hinrich’s untimely
motion prejudiced him by depriving him of a fair trial, and that Appellate
Counsels were ineffective for failing to argue the claim on appeal. Appellant’s
Brief at 15, 17. While Appellant acknowledges the trial court gave an
instruction to the jury to disregard the comment, he maintains that “[e]ven
when an immediate instruction is given, it is not always clear that the
prejudicial impact” was removed. Id. at 16-17.
Preliminarily, we note that a motion for mistrial “shall be made when
the [prejudice] is disclosed.” Pa.R.Crim.P. 605(b). A mistrial is an “extreme
remedy [that] must be granted only when an incident is of such a nature that
its unavoidable effect is to deprive defendant of a fair trial.” Commonwealth
v. Bracey, 831 A.2d 678, 682 (Pa. Super. 2003) (citation omitted). A trial
court “may remove taint caused by improper testimony through curative
instructions” and “must consider all surrounding circumstances before finding
that curative instructions were insufficient and the extreme remedy of a
mistrial is required.” Id. (citations omitted). Lastly, jurors are presumed to
have followed the trial court’s instructions. Commonwealth v. Talbert, 129
A.3d 536, 542 (Pa. Super. 2015).
Here, the PCRA court concluded Appellant’s ineffectiveness claim is
unavailing. Specifically, it opined:
[The trial court] sustained [Trial Counsel Hinrichs’] objection and
immediately instructed the jury to disregard Detective Velazquez’s
misstatement, which he retracted after the objection was
sustained. Since the jury is presumed to have followed [the
court’s] instruction, no mistrial would have been warranted.
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Beyond that, it is flatly inconceivable that the detective’s fleeting
reference to Appellant’s prior contacts with police, which he
immediately corrected and which the [c]ourt instructed the jury
to disregard, had the unavoidable effect of depriving Appellant of
a fair trial.
Id. at 9 (citation omitted). We agree.
Even though Trial Counsel Hinrichs did not timely move for a mistrial,
we still conclude this argument is meritless. Counsel objected at the time of
the testimony, which the trial court sustained. The court then provided a
curative instruction to the jury. At the conclusion of trial, the jury found
Appellant not guilty of several charges, which demonstrates that the
instruction was effective. The next day, when Counsel made an oral motion
for mistrial, the trial court denied it on the following substantive bases: (1)
the trial court already sustained Counsel’s objection to the testimony; (2) the
detective corrected his statement; (3) the court instructed the jury to
disregard the statement; and (4) one comment regarding “prior contacts” did
not rise to the level of prejudice required to grant a mistrial. See PCRA Ct.
Op. at 9.9 Accordingly, because the trial court’s denial was not based on the
motion’s untimeliness, the underlying claim that Appellant was denied a fair
trial due to Counsel’s failure is meritless.
Moreover, we reiterate that the jury found Appellant not guilty of several
charges at trial. Based on the jury’s verdict, the detective’s statement was
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9 Even if the motion was timely, there was no reasonable basis for Trial
Counsel to believe the trial court would also grant his motion for mistrial based
on the same claim.
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not so prejudicial to overcome the court’s curative instruction as a sufficient
remedy. Appellant has not established each prong of the ineffectiveness test,
and as such, he cannot show that counsel was ineffective for failing to raise a
timely objection. See Johnson, 179 A.3d at 1158; Bracey, 831 A.2d at 682.
No relief is due.
In his final claim, Appellant argues prior PCRA Counsel Rudenstein was
ineffective for failing to argue that Officer Hulmes was a “corrupt police officer”
who gave false testimony at trial. Appellant’s Brief at 17. By way of
background, the Commonwealth presented the testimony of Officer Hulmes,
who stated, that on April 28, 2011, he was doing surveillance in the area of
2800 North 7th Street. N.T. Trial (Jury) Vol. 1, 4/24/13, at 143. While there,
he observed Appellant exit a vehicle and interact with two individuals before
getting back in the car and leaving. Id. at 144. Officer Hulmes directed other
officers to stop Appellant’s vehicle, but Appellant fled the area “at a high rate
of speed.” Id. at 144-45. A few minutes later, Appellant returned to the area
in the vehicle. Id. at 149. The Commonwealth asked Officer Hulmes what
happened next, and the following exchange occurred:
[Officer Hulmes:] He jumped out of the vehicle and started to run
southbound. The two individuals he had an interaction with were
saying, [“]Yo, what are you doing? What is going on?[”] At that
point, [Appellant] says, [“]The cops are chasing me. I got to go.
I got a gun.[”] And he grabbed his hip and ran southbound down
the street[.] I called backup officers in as soon as I heard
[Appellant] say, I got a gun.
* * *
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[Commonwealth]: Now you say you heard [Appellant] say that he
had a gun?
[Officer Hulmes]: The first thing he said when the two individuals
said, [“]Yo, what are you doing?[”] He said, [“]I got to go. The
cops are chasing me. I got a gun on me.[”]
[Commonwealth]: Did he say gun or use street slang?
[Officer Hulmes]: He didn’t use street slang. He said, [“]Gun on
my hip.[”]
Id. at 149, 151. Officer Hulmes stated that officers did not recover a gun
from the surrounding area. Id. at 151-52.
Turning to Appellant’s argument, he maintains that he raised this claim
in his pro se petitions and PCRA Counsel Rudenstein should have raised the
claim as after-discovered evidence.10 Appellant’s Brief at 17. Appellant insists
that: (1) Officer Hulmes “falsely stated that Appellant had a gun in a stolen
vehicle[,]” which impacted “all” of his charges at trial; (2) he received several
not guilty verdicts at trial, supporting his assertion that Officer Hulmes’
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10 We note that at times in his brief, Appellant appears to conflate the concepts
of newly-discovered evidence and after-discovered evidence. See
Commonwealth v. Williams, 244 A.3d 1281, 1289 n.20 (Pa. Super. 2021)
(stating that a newly-discovered evidence claim — defined under Section
9545(b)(1)(ii) of the PCRA — is a jurisdictional threshold and does not require
a merits analysis, whereas an after-discovered evidence assertion — Section
9543(a)(2)(vi) under the PCRA — is a substantive claim alleging the
unavailability of exculpatory evidence at the time of trial that would have
changed the outcome at trial if introduced). Here, we are not concerned with
a jurisdictional question because Appellant’s petition was timely filed;
therefore, our analysis pertains to a substantive after-discovered evidence
claim.
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testimony was not reliable; and (3) the Superior Court “has referenced [the
officer’s] pattern of corruption” multiple times.11 Id. at 18, 23-24.
Under the PCRA, a petitioner is eligible for relief if they can plead and
prove that their conviction resulted from “[t]he 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.” 42
Pa.C.S. § 9543(a)(2)(vi). To grant relief on the basis of after-discovered
evidence, an appellant must demonstrate all four of the following factors:
[T]he new evidence: (1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable diligence; (2)
is not merely corroborative or cumulative; (3) will not be used
solely to impeach the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were granted.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citation omitted).
The PCRA court concluded PCRA Counsel Rudenstein was not ineffective
for failing to raise this claim. The court stated that the testimony of the two
robbery victims in addition to the other evidence presented at trial was “more
than sufficient” to sustain his convictions without Officer Hulmes’ testimony.
PCRA Ct. Op. at 11. Further, because the officer’s statement referenced
Appellant’s purported possession of a gun, it noted that Appellant was not
convicted of any possessory offenses demonstrating that “[c]learly[,] the jury
____________________________________________
11 Preliminarily, we note that Appellant raises this claim of PCRA Counsel’s
ineffectiveness for the first time on appeal. Pursuant to Bradley, we may
address this claim as it is the earliest opportunity for him to have done so.
See Bradley, 261 A.3d at 405.
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was not persuaded that Appellant was in possession of a firearm[.]” Id. at
10-11. Lastly, the court stated Appellant’s bald assertion based upon a
newspaper article12 “falls woefully short” of material facts that would support
an after-discovered evidence claim. We agree.
Appellant’s assertions do not meet the requirements of after-discovered
evidence because he failed to demonstrate that a different verdict would have
resulted. See Small, 189 A.3d at 972. As the PCRA court noted, Appellant
was not convicted of any firearms offenses with which he was charged. One
could reasonably infer that Officer Hulmes’ testimony did not convince the jury
that Appellant was in possession of a gun. Further, there was additional
evidence — outside of the officer’s testimony — regarding his other crimes,
which the jury found to be credible. See Commonwealth v. Priest, 18 A.3d
1235, 1239 (Pa. Super. 2011) (factfinder is free to believe all, part, or none
of the evidence). As Appellant’s assertions that Officer Hulmes lied during his
testimony at trial are baseless, PCRA Counsel Rudenstein cannot be deemed
ineffective for failing to raise this issue. Commonwealth v. Harris, 852 A.2d
____________________________________________12 The PCRA court references a “Citypaper article published on August 28,
2014.” PCRA Ct. Op. at 11. Appellant attached the article to his pro se PCRA
petitions but does not rely upon this information in his appellate brief. The
article stated that Officer Hulmes was charged with perjury and related
offenses after “lying in court and on search-warrant paperwork” regarding an
unrelated 2010 drug case. Appellant’s Pro Se Petition under Post Conviction
Collateral Relief Act, 6/4/15, Exh. B. Appellant does not allege there is any
connection between the 2010 drug case and the present matter.
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1168, 1173 (Pa. 2004) (counsel not ineffective for failing to raise a meritless
claim). No relief is due.13
As Appellant has failed to establish that any of his prior counsels were
ineffective or that the PCRA court erred in dismissing his petition, he is not
entitled to relief. See Flor, 259 A.3d at 910.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/01/2023
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13In his argument, Appellant asserts that this Court has “referenced [Officer]
Hulmes’ pattern of corruption in multiple” memoranda. Appellant’s Brief at
23, citing Commonwealth v. Hunter, 1750 EDA 2015 (unpub. memo.) (Pa.
Super. May 30, 2017), and Commonwealth v. Friedland, 133 EDA 2016
(unpub. memo.) (Jan. 12, 2017). This is incorrect. Neither Hunter nor
Friedland referenced any “pattern of corruption” on the part of Officer
Hulmes, but instead, stated that Officer Hulmes was not involved in the
matters. See Hunter, 1750 EDA 2015 (unpub. memo. at 3, 7) (stating Officer
Hulmes was not involved in this case and any alleged wrongdoing had no
impact on the defendant); Friedland, 133 EDA 2016 (unpub. memo. at 13-
14) (questioning another officer about investigations where he worked under
Officer Hulmes was not permitted because it was irrelevant to the present
charges).
Appellant has failed to demonstrate how this Court’s mention of Officer
Hulmes in two unrelated matters supports his contention that the officer made
false statements in the case at issue.
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