Com. v. Armstrong, S.

J-S45036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAVONE ARMSTRONG :
:
Appellant : No. 1130 EDA 2022
Appeal from the PCRA Order Entered March 4, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0011385-2016
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 1, 2023
Shavone Armstrong (Appellant) pro se appeals from the order
dismissing her petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history as follows:
On February 26, 2018, following a jury trial …[, Appellant]
was convicted of one count each of murder of the first degree (18
Pa.C.S. § 2502(a)), robbery (18 Pa.C.S. § 3701(a)(1)),
kidnapping (18 Pa.C.S. § 2901(a)(1)), conspiracy to commit
robbery (18 Pa.C.S. §§ 903, 3701(a)(1)), conspiracy to commit
kidnapping (18 Pa.C.S. §§ 903, 2901(a)(1)), conspiracy to
commit murder of the first degree (18 Pa.C.S. §§ 903 & 2502(a)),
unlawful restraint (18 Pa.C.S. § 2902(a)(1)), and possessing an
instrument of crime [] (18 Pa.C.S. § 907). The [trial] court
immediately imposed an aggregate sentence of life in prison
without the possibility of parole. At trial, [Appellant] was
represented by Gary Server, Esquire [(Mr. Server or Trial
Counsel)] …. [Appellant was represented in connection with pre-
trial proceedings by Qawi Abdul Rahman, Esquire (Attorney
Rahman).]
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[Appellant] filed post-sentence motions, which the [trial]
court denied on June 21, 2018. On November 25, 2019, the
Superior Court affirmed [Appellant’s] judgment of sentence[.
Commonwealth v. Armstrong, 24 A.3d 792 (Pa. Super. 2019)
(unpublished memorandum) (affirming trial court’s rejection of
Appellant’s challenges to the weight and sufficiency of the
evidence).] [O]n June 16, 2020, the Supreme Court of
Pennsylvania denied allocatur. [Commonwealth v. Armstrong,
2020 Pa. LEXIS 3339 (Pa. 2020).] [Appellant] was represented
on post-sentence motions and appeal by Mr. Server.
On November 23, 2020, [Appellant timely] … filed a pro se
petition (“PCRA Petition”) raising numerous grounds for relief.
Gina Amoriello, Esquire [(Ms. Amoriello)], was appointed to
represent [Appellant] on January 22, 2021. On June 23, 2021,
Ms. Amoriello filed a motion to withdraw as counsel and a letter,
pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) [(en banc), and Commonwealth v. Turner, 544 A.2d 927(Pa. 1988)], stating there was no merit to [Appellant’s] claims for
collateral relief (“Finley letter”). However, after finding Ms.
Amoriello’s [Finley] letter to be inadequate, the [PCRA] court
ordered her to file either a supplemental Finley letter or an
amended [PCRA] petition. …
Thereafter, Ms. Amoriello filed a supplemental Finley letter
(“Supplemental Finley Letter”) on October 24, 2021, again
stating there was no merit to [Appellant’s] claims for collateral
relief. On November 30, 2021, [Appellant] filed a pro se response
to Ms. Amoriello’s Supplemental Finley Letter (“Finley
Response”), in which [Appellant] raised three new issues. On
December 15, 2021, Ms. Amoriello filed a reply to [Appellant’s]
Finley Response. The [PCRA] court issued notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss [Appellant’s] petition on
December 20, 2021, to which [Appellant] filed a pro se response
(“907 Response”) on January 12, 2022. Ms. Amoriello filed a reply
to [Appellant’s] 907 Response … on February 2, 2022. On March
4, 2022, the [PCRA] court dismissed [Appellant’s] PCRA Petition
and granted Ms. Amoriello’s motion to withdraw.
PCRA Court Opinion, 6/3/22, at 1-3 (footnotes omitted; some citations and
capitalization modified).
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Appellant timely filed a pro se appeal.1 Appellant thereafter filed a
court-ordered Pa.R.A.P. 1925(b) statement of errors, and the PCRA court
issued a responsive Pa.R.A.P. 1925(a) opinion.
Appellant presents four issues for review:
A. Did the Trial Court err in not granting Appellant relief based on
the fact that she suffered layered ineffective assistance of
counsel?
B. Did the Trial Court err in not granting Appellant relief based on
judicial misconduct?
C. Was Appellant’s due process rights [sic] violated by police
misconduct?
D. Did prosecutorial misconduct violate Appellant’s Constitutional
rights and deprive her of a fair trial?
Appellant’s Brief at 4.
“When reviewing the denial of a PCRA petition, an appellate court must
determine whether the PCRA court’s order is supported by the record and free
of legal error.” Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa.
2022) (citation, quotations, and footnote omitted).
In her first issue, Appellant argues the PCRA court erred in rejecting her
claim that Trial Counsel and Attorney Rahman were ineffective. See
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1 Where a PCRA court accepts a proper Turner/Finley no-merit letter and
permits counsel to withdraw, the petitioner is not entitled to the appointment
of new PCRA counsel; rather, he or she must retain private counsel or proceed
pro se. Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa. Super.
2012).
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Appellant’s Brief at 10-14. Appellant contends Trial Counsel was ineffective
for failing to:
• Spend adequate time prior to trial consulting with Appellant,
id. at 11;
• “Present evidence, make a defense, [and] investigate
mitigating evidence,” id. at 13;
• “Investigate any evidence, such as attacking [Appellant’s]
phone records,” id. at 12;
• “File pretrial motions to suppress evidence[,] i.e., the knife
which had no DNA or fingerprints belonging to Appellant[.]”
Id. at 11.
With respect to Attorney Rahman, Appellant claims he improperly
“attempted to pressure Appellant into taking a plea agreement[,] saying if
[Appellant] didn’t waive the preliminary hearing[,] she wouldn’t be offered a
deal.” Id. at 10.
Pennsylvania law presumes counsel is effective, and a PCRA petitioner
bears the burden of proving otherwise. Commonwealth v. Brown, 196 A.3d
130, 150 (Pa. 2018). A PCRA petitioner will be granted relief only when she
proves, by a preponderance of the evidence, that her conviction or sentence
resulted from the “[i]neffective 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.’” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 42
Pa.C.S.A. § 9543(a)(2)(ii)).
To establish ineffectiveness, the petitioner must plead and prove:
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(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) [s]he
suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability the result
of the proceeding would have been different. Commonwealth v.
Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective
assistance of counsel test from Commonwealth v. Pierce, 527
A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim. Finally,
because a PCRA petitioner must establish all Pierce prongs to be
entitled to relief, we are not required to analyze the elements of
an ineffectiveness claim in any specific order; thus, if a claim fails
under any required element, we may dismiss the claim on that
basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations
modified); see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011)
(“When evaluating ineffectiveness claims, judicial scrutiny of counsel’s
performance must be highly deferential.” (citation and quotes omitted)).
We first address Appellant’s one-sentence claim of Attorney Rahman’s
ineffectiveness. Appellant’s Brief at 10 (stating Attorney Rahman “attempted
to pressure Appellant into taking a plea agreement, saying if she didn’t waive
the preliminary hearing she wouldn’t be offered a deal.”).
It is settled that “mere issue spotting without analysis or legal citation
to support an assertion precludes appellate review of a matter.” Coulter v.
Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014) (citation omitted); see also
Pa.R.A.P. 2119(a) (stating the appellant’s brief “shall have ... such discussion
and citation of authorities as are deemed pertinent.”). Moreover, an
“appellant’s failure to develop any argument at all concerning the second and
third prongs of the ineffectiveness test … results in waiver[.]”
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Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002). Thus, Appellant
has waived this claim. See id.; see also Commonwealth v. Lewis, 63 A.3d
1274, 1278 (Pa. Super. 2013) (“Although this Court is willing to construe
liberally materials filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant.”).
Waiver notwithstanding, Appellant’s claim does not merit relief. The
PCRA court explained:
[Appellant asserts Attorney] Rahman waived the preliminary
hearing without asking [Appellant] if she instead wanted to
present an argument at the hearing, and that [Attorney Rahman]
only visited [Appellant] on one occasion prior to her preliminary
hearing. PCRA Petition[, 11/23/20, at] ¶¶ 12, 14. However, it is
well established that once a defendant has been convicted of an
offense beyond a reasonable doubt, any defects regarding the
sufficiency of the evidence adduced at a preliminary hearing are
deemed harmless. Commonwealth v. Wilson, 172 A.3d 605,
610 (Pa. Super. 2017) (quotation marks and citation omitted).
Therefore, even if the Commonwealth would not have been able
to establish a prima facie case at the time of the preliminary
hearing, [Appellant] would not be entitled to relief. Id.PCRA Court Opinion, 6/3/22, at 7-8. Our review reveals record and legal
support for the above reasoning.
With respect to Appellant’s claim of Trial Counsel’s ineffectiveness, the
PCRA court stated:
As for [T]rial [C]ounsel, [Appellant] avers that Mr. Server was
ineffective because he only came to meet [Appellant] three times
before the trial. PCRA Petition[, 11/23/20,] at ¶ 15. However,
the length and frequency of consultations alone cannot support a
finding of ineffectiveness. See Commonwealth v. Johnson, 51
A.3d 237, 244 (Pa. Super. 2012) [(en banc) (affirming PCRA
court’s rejection of petitioner’s claim of trial counsel’s
ineffectiveness due to inadequate pre-trial consultation, holding
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“the length and frequency of the consultations alone [cannot]
support a finding of ineffectiveness.”)]. Rather, [Appellant] must
identify some “beneficial information or issue that trial counsel
would have discovered had he engaged in a more thorough
pretrial consultation … which would have changed the outcome of
h[er] trial.” Commonwealth v. Elliott, 80 A.3d 415, 432 (Pa.
2013). Here, [Appellant] failed to identify how more
communication with [T]rial [C]ounsel prior to the trial would have
changed the outcome of her trial.
***
[T]he record establishes [T]rial [C]ounsel was substantially
prepared, conducted proper-cross examination and made
appropriate arguments. … Moreover, [Appellant] does not allege
how further diligence and promptness by [T]rial [C]ounsel could
have improved [Appellant’s] chances at trial. Accordingly, her
claim is meritless.
PCRA Court Opinion, 6/3/22, at 8, 9 (some citations omitted). Again, our
review discloses that the PCRA court’s reasoning is supported by the record
and applicable law. Appellant has failed to carry her burden of proving Trial
Counsel’s ineffectiveness. See Treiber, 121 A.3d at 445.
In her second issue, Appellant complains the PCRA court erred in
rejecting her claim of “judicial misconduct,” because the trial court improperly
“refused to release [two prospective jurors during voir dire] due to hardship,”
one of whom purportedly “fell asleep” during trial. Appellant’s Brief at 15.
Appellant claims the trial court’s failure to issue a curative instruction in
response “shows the inability of [the trial court] to perform [its j]udicial duties
competently ….” Id. at 16.
Before reaching the merits of this issue, we address whether Appellant
preserved it in her Rule 1925(b) statement of errors. We have emphasized
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that Rule 1925(b) “is a crucial component of the appellate process because it
allows the trial court to identify and focus on those issues the parties plan to
raise on appeal.” Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa.
Super. 2020); see also Pa.R.A.P. 302(a) (issues cannot be raised for the first
time on appeal). “[A]ny issue not raised in a Rule 1925(b) statement will be
deemed waived for appellate review.” Bonnett, 239 A.3d at 106 (citing
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”); see also Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement … are waived.”).
The PCRA court correctly observed that Appellant’s Rule 1925(b)
statement with respect to her claim of “judicial misconduct” is impermissibly
vague. See PCRA Court Opinion, 6/3/22, at 17 (concluding Appellant waived
the issue where the court “has no way to discern what [Appellant] is claiming.”
(citing Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008)
(“When the appellant provides a concise statement which is too vague to allow
the trial court an opportunity to identify the issues raised on appeal, he/she
has provided the functional equivalent of no Concise Statement at all.”)
(citation omitted)). Accordingly, Appellant waived her second issue. See
Bonnett, supra; Cannon, supra.In her third issue, Appellant asserts the PCRA court erred in rejecting
her claim of police misconduct. See Appellant’s Brief at 17-18 (claiming police
unlawfully obtained her DNA without her consent or a warrant, and stating
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she “was subjected to extensive interrogations …, police brutality, and mental
strain.”). Appellant also contends police violated her due process rights by
failing to inform her during her police interview that she was a suspect, and
questioning her “for nineteen (19) hours with only three (3) breaks, but no
food or drink.” Id. at 18.
To obtain relief under the PCRA, a petitioner must prove that the
“allegation of error has not been previously litigated or waived.” 42 Pa.C.S.A.
§ 9543(a)(3). “[A]n issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b); see also
Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017).
Here, the PCRA court opined that Appellant waived her claim of police
misconduct pursuant to Section 9544(b) and Cousar, supra, as “[t]hese
claims could have, but were not, raised on [Appellant’s] direct appeal to the
Superior Court.” PCRA Court Opinion, 6/3/22, at 18. We agree.
The PCRA court further opined that even if Appellant had not waived the
claim, she would not be entitled to relief:
Obtaining DNA without a warrant
[Appellant] claims that the police violated her “Constitutionaly
[sic] guaranteed rights by obtaining DNA without a warrant.”
Statement of Errors[, 5/5/22,] at 3. Specifically, [Appellant]
alleges that “[w]hile in custody for interrogation, Detective Riley
showed [Appellant] a paper stating [she] had to produce a DNA
sample. The form was not filled out and [Appellant] refused to
sign or give a DNA sample without a warrant.” PCRA Petition[,
11/23/20,] at 40. Then, the “[t]wo officers held [Appellant] down
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while a third officer took [Appellant’s] DNA.” Id. at 41. However,
no DNA results were introduced at trial. Accordingly, [Appellant]
could not have suffered any prejudice from the alleged police
misconduct in obtaining her DNA.
Failure to properly Mirandize[2] and police brutality
[Appellant] claims that the police committed misconduct by
“failing to properly Mirandize and police brutality.” Statement of
Errors[, 5/5/22,] at 3. [Appellant] alleges that, while in police
custody, she was “questioned for nineteen (19) hours off and on,”
while receiving only “three (3) breaks with no food or beverages.”
PCRA Petition[, 11/23/20,] at 34. [Appellant] also claims that,
although the police advised her of her Miranda rights prior to
being questioned, “the police explained [Appellant] was being
looked at as a witness," and not as a potential suspect. PCRA
Petition at 35.
However, [Appellant’s] statement to police was never
introduced at trial. Therefore, [Appellant] could not have suffered
any prejudice from any police misconduct that occurred during her
interrogation.
PCRA Court Opinion, 6/3/22, at 18-19 (footnote added; paragraph numbers
omitted). As the record and law support the PCRA court’s reasoning,
Appellant’s third issue does not warrant relief. See id.
Finally, Appellant argues the PCRA court erred with respect to the
prosecution’s failure to disclose exculpatory material during discovery in
violation of Brady v. Maryland, 373 U.S. 83, 87 (1963).3 Appellant’s Brief
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2 See generally Miranda v. Arizona, 384 U.S. 436 (1966) (an accused
subject to custodial interrogation must be advised of the constitutional right
to remain silent and the right to a lawyer).
3 A Brady violation occurs where, among other things, the Commonwealth
fails to disclose evidence in its possession that is helpful to the defendant.
Commonwealth v. Paddy, 800 A.2d 294, 305 (Pa. 2002).
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at 20-22. Appellant contends the prosecution failed to disclose telephone
records which “would have shown Appellant didn’t even know … the victim.”
Id. at 20. Appellant also asserts the prosecution improperly introduced at
trial a “prop” knife, which “couldn’t be proved to be the actual [murder]
weapon.” Id. at 21.
“Brady claims … may be subject to waiver.” Cousar, 154 A.3d at 301
(citing Commonwealth v. Roney, 79 A.3d 595, 609-12 (several Brady
claims deemed waived on PCRA appeal for failure to raise them at trial or on
direct appeal)); see also Commonwealth v. Bomar, 104 A.3d 1179, 1190-
91 (Pa. 2014) (Brady claim waived where appellant did not show evidence
was not available at trial or counsel could not have uncovered it with
reasonable diligence). Appellant could have raised her Brady issue at trial or
on direct appeal, but failed to do so. Thus, we are constrained to find waiver.
42 Pa.C.S.A. § 9544(b); Cousar, 154 A.3d at 301; see also PCRA Court
Opinion, 6/3/22, at 16 (finding Brady claim waived under Section 9544(b)).
In sum, our review reveals no error or abuse of discretion by the PCRA
court. We therefore affirm the denial of relief.
Order affirmed.
Judge Olson joins the memorandum.
Judge Stabile concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/01/2023
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