Com. v. Freeland, K.

J-S48034-14
2014 Pa. Super. 274
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEYON TYRELL FREELAND,
Appellant No. 1790 MDA 2013
Appeal from the PCRA Order September 25, 2013
in the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0001946-2011
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED DECEMBER 11, 2014
Appellant, Keyon Tyrell Freeland, appeals pro se from the order
denying his first petition for relief pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546. Counsel has filed a Turner/Finley “no
merit” letter and petitioned this Court for permission to withdraw.1
Appellant filed a response to counsel’s petition. Appellant has also filed a
pro se brief. We grant counsel’s petition and affirm the order denying PCRA
relief.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S48034-14
Appellant’s conviction arose out of an incident on January 8, 2011,
when he shot at Kyree Maxfield and Ja’Quinn Barnes, seriously wounding
Maxfield, but missing Barnes. The attack was apparently in retaliation for
the shooting of Appellant’s friend, Ayon Coleman, at a party which Maxfield
and Barnes had also attended earlier the same evening. After stopping
Maxfield and Barnes on the street and questioning them, Appellant pulled
out two guns and opened fire, saying, “Someone has to pay[.]” (N.T. Trial,
12/06/11, at 125; see also id. at 127).
Maxfield received four shots to his leg, two rupturing his femoral
artery and femoral vein, as well as a gunshot wound to his left hand,
apparently received as a defensive wound when he tried to shield his head
from the barrage of bullets. (See id., at 157-58). The attending trauma
surgeon, Keith David Clancy, M.D., accepted without objection as an expert
in trauma, surgery, and critical care, testified at trial that Maxfield would
have died from bleeding or sepsis in the leg without immediate surgery.
(See id., at 154, 159, 160).
From his hospital bed, Maxfield identified Appellant as his assailant in a
color photo array. Appellant’s photo was apparently tinged in red.
Nevertheless, at trial Maxfield denied that Appellant was the shooter,
claiming he was shot by somebody from a local mall. (See N.T. Trial,
12/07/11, at 341-42).
A few days after the shooting, on January 12, 2011, police attempted
to stop Appellant while he was driving a stolen vehicle without a license. He
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fled. The police pursued him in a high speed chase. When he crashed the
vehicle into a telephone pole, he tried to escape on foot. As Appellant ran,
he dropped two handguns to the ground. The police video recorded the
entire incident on the dashboard camera of their patrol car. The
Commonwealth played the video for the jury at trial.
Shortly after the trial judge adjourned the court session, excused
counsel and sent the jury to begin deliberations, the jury sent out a
question, requesting to see a copy of the trial transcript. (See N.T. Trial,
12/08/11, at 426-27). The trial judge replied, without bringing counsel
back, that the jury had to rely on its memory of the testimony. The judge
subsequently explained this action on the record, with counsel present, and
asked if either counsel had any objections or wanted to supplement the
record. (See id., at 427). Both declined. (See id.).
On December 8, 2011, a jury convicted Appellant of attempted
homicide and related offenses. (See id., at 431). Specifically, the jury
convicted Appellant of the attempted homicide of Maxfield; aggravated
assault (causing serious bodily injury) of Maxfield; and illegal possession of a
firearm. The jury acquitted Appellant of the attempted homicide of Barnes,
and aggravated assault (serious bodily injury) of Barnes.
On February 17, 2012, the court sentenced Appellant to an aggregate
term of not less than fourteen nor more than twenty-eight years’
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incarceration in a state correctional institution. Appellant filed a post-
sentence motion which the trial court denied.
Appellant filed a direct appeal, challenging the sufficiency of the
evidence for attempted homicide, the publication to the jury of the red-
tinged color photo from the photo array “lineup” that he claimed depicted
injuries to his face (which he argued gave him the image of a propensity for
violence), and the trial court’s admission of the police video of the car chase
and flight on foot. This Court affirmed the judgment of sentence, rejecting
all three claims. (See Commonwealth v. Freeland, No. 553 MDA 2012,
unpublished memorandum at 5-9 (Pa. Super. filed August 23, 2012)).
In particular, this Court found the claim of error for playing the video
waived for failure to object at trial. (See id. at 9). However, the Court
added in a footnote that even if the claim had been properly preserved for
appeal, it would fail because the evidence was relevant to show
consciousness of guilt, with the probative value outweighing the danger of
unfair prejudice. (See id. at 9 n.7).
On March 4, 2013, Appellant filed a pro se petition for PCRA relief.
The PCRA court appointed counsel, who filed an amended petition on April
24, 2013.2 That counsel, and other counsel, were permitted to withdraw;
____________________________________________
2
Briefly summarized, the petition raised the following allegations of
ineffectiveness:
(Footnote Continued Next Page)
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the court eventually appointed Attorney Scott A. McCabe, who filed an
amended petition on August 16, 2013.3
After a hearing on September 25, 2013, the PCRA court denied relief
from the bench. The court followed up with a written order denying relief,
_______________________
(Footnote Continued)
a. Failure to object to the video of Appellant’s flight from
the police;
b. Failure to investigate the case or impeach the
Commonwealth’s “main” witness at trial;
c. Failure to introduce recovered clothing as exculpatory
evidence;
d. Failure to file a motion to suppress the photo lineup;
e. Inadequate questioning of Commonwealth witness
about the blood on Appellant’s forehead in the photo lineup
“which may have been exculpatory[.]”
(Amended PCRA Petition, 4/24/13, at unnumbered page 3).
3
Attorney McCabe’s amended petition asserted the following trial counsel
ineffectiveness issues:
a. Failure to move to suppress Maxfield’s pre-trial
identification;
b. Failure to “remind” trial court of scheduled pre-trial
hearing on Appellant’s motion for new counsel;
c. Failure to call witness who would say she heard another
name at the shooting;
d. Inadequate impeachment of Barnes;
e. Failure to request jury instruction on consciousness of
guilt.
(See Amended PCRA Petition, 8/16/13, at unnumbered pages 2-4).
We further observe that although Attorney McCabe is still the attorney of
record, as previously noted, he has petitioned this Court for permission to
withdraw from representation.
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which also explained the reasons for its denial.4 Counsel filed a timely notice
of appeal on October 3, 2013.5
On March 13, 2014, this Court remanded the appeal back to the PCRA
court for a determination of whether counsel had abandoned Appellant by
failure to file a brief. (See Order, per curiam, 3/13/14). After a hearing,
the PCRA court found that counsel had drafted a Turner/Finley letter, but
because of an office breakdown in communication, inadvertently failed to file
and serve it in a timely fashion. (See N.T. Hearing, 3/27/14, at 1-4; see
also Order, 3/27/14, at 4-6). Therefore, the court concluded, counsel had
not abandoned his client. (See N.T. Hearing, 3/27/14, at 4). The PCRA
court issued an order directing counsel to file and serve his Turner/Finley
letter and application to withdraw with this Court; the PCRA court also
recommended that this Court permit counsel to file his Turner/Finley letter.
(See Order, 3/27/14, at 5).
On April 4, 2014, Attorney McCabe filed a petition to withdraw with
this Court, attaching his Turner/Finley “no merit” letter, (as originally
addressed to Appellant), with notice to Appellant that he had the right to
proceed pro se or retain private counsel. Appellant filed an application for
____________________________________________
4
The order, also dated September 25, 2013, was docketed on October 17,
2013. (See Order, 10/17/13).
5
Appellant filed a statement of errors on November 15, 2013. The PCRA
court filed an opinion on December 11, 2013. See Pa.R.A.P. 1925.
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relief on April 29, 2014, and his pro se response to the Turner/Finley letter
on May 2, 2014. Appellant also requested an extension to file a “cross-
appeal” in support of his opposition to counsel’s petition to withdraw.
(Application for Extension of Time, 7/02/14).
On August 4, 2014, this Court granted Appellant a thirty day extension
to file a response to counsel’s petition, as requested, and to file a brief on
the merits of the appeal. (See Order, per curiam, 8/04/14). When the
original extension period had expired, this Court granted Appellant an
additional fifteen days’ extension, with the proviso that no additional
extensions would be granted. (See Order, 9/08/14). Appellant has now
“timely” filed a pro se brief in response to counsel’s petition to withdraw.
(See Appellant’s Brief, filed 9/10/14).
Appellant’s brief raises three questions:
A. Did the PCRA/[t]rial [c]ourt err on remand when the
[c]ourt [c]oncluded that Attorney Scott A. McCabe did not
abandon the [A]ppellant on appeal?
B. Should counsel be allowed to withdraw after
abandoning [A]ppellant, pursuant to Turner/Finley when
counsel did not certify [A]ppellant’s lack of merit on appeal?
C. Does [A]ppellant have meritorious issues?
(Appellant’s Brief, at 4).
Before we may review the merits of Appellant’s claims, we must
determine if counsel has satisfied the requirements to be permitted to
withdraw from further representation.
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The Turner/Finley decisions provide the manner for post-
conviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney’s withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court if the
no-merit letter is filed before it, see Turner, supra, then must
conduct its own independent evaluation of the record and agree
with counsel that the petition is without merit. See
[Commonwealth v.] Pitts, 981 A.2d 875, 876 (Pa. 2009)
supra at [ ] n.1.
In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2006) abrogated in part by Pitts, supra, this Court imposed
additional requirements on counsel that closely track the
procedure for withdrawing on direct appeal. Pursuant to Friend,
counsel is required to contemporaneously serve upon his client
his no-merit letter and application to withdraw along with a
statement that if the court granted counsel’s withdrawal request,
the client may proceed pro se or with a privately retained
attorney. Though Chief Justice Castille noted in Pitts that this
Court is not authorized to craft procedural rules, the Court did
not overturn this aspect of Friend as those prerequisites did not
apply to the petitioner in Pitts. See Pitts, supra at 881
(Castille, C.J. concurring).
After the decision in Pitts, this Court held in
Commonwealth v. Widgins, 29 A.3d 816 (Pa. Super. 2011),
that the additional procedural requirements of Friend were still
applicable during collateral review.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012), appeal
denied, 64 A.3d 631 (Pa. 2013) (footnote omitted).
Here, our review of the hearing transcript confirms that the PCRA
court’s recommendation on the question of counsel’s “abandonment” of
Appellant is supported by the findings of record. We agree with the PCRA
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court’s recommendation and accept counsel’s Turner/Finley letter nunc pro
tunc.
We also find that counsel has substantially complied with the
requirements of Turner/Finley and their progeny, detailing his review of the
record and his conclusion that Appellant’s claims are meritless. Counsel also
notified Appellant, as directed by the PCRA court, and furnished him with a
copy of his “no merit letter,” advising him of his right to proceed pro se or to
retain private counsel. Accordingly, we will grant counsel’s petition to
withdraw.
Next, we proceed to our independent review of Appellant’s claims.
Our standard and scope of review for the denial of a PCRA petition is
well-settled.
[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations and
internal quotation marks omitted).
To establish trial counsel’s ineffectiveness, a petitioner
must demonstrate: (1) the underlying claim has arguable merit;
(2) counsel had no reasonable basis for the course of action or
inaction chosen; and (3) counsel’s action or inaction prejudiced
the petitioner. See Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Commonwealth v.
Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Id. at 303 n.3. Furthermore,
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[A] PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his conviction
or sentence resulted from the 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. 42
Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that such
deficiency prejudiced him.
Id. at 311–12 (most case citations, internal quotation marks and other
punctuation omitted). “Counsel’s assistance is deemed constitutionally
effective once this Court determines that the defendant has not established
any one of the prongs of the ineffectiveness test.” Commonwealth v.
Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citations and internal
quotation marks omitted) (emphasis in original). Additionally,
[Our Supreme] Court has recognized that counsel are not
constitutionally required to forward any and all possible
objections at trial, and the decision of when to interrupt
oftentimes is a function of overall defense strategy being
brought to bear upon issues which arise unexpectedly at trial
and require split-second decision-making by counsel. Under
some circumstances, trial counsel may forego objecting to an
objectionable remark or seeking a cautionary instruction on a
particular point because objections sometimes highlight the issue
for the jury, and curative instructions always do.
Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (case citations,
internal quotation marks and other punctuation omitted). This Court
analyzes PCRA appeals “in the light most favorable to the prevailing
party at the PCRA level.” Rykard, supra at 1183 (emphasis added); see
also Spotz, supra at 311 (“The scope of review is limited to the findings of
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the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.”) (emphasis added).
Our Supreme Court has explained:
As a general and practical matter, it is more difficult for a
defendant to prevail on a claim litigated through the lens of
counsel ineffectiveness, rather than as a preserved claim of trial
court error. Commonwealth v. Gribble, 580 Pa. 647, 863
A.2d 455, 472 (2004). This Court has addressed the difference
as follows:
[A] defendant [raising a claim of ineffective assistance
of counsel] is required to show actual prejudice; that is,
that counsel’s ineffectiveness was of such magnitude that it
‘could have reasonably had an adverse effect on the
outcome of the proceedings.’ Pierce, 515 Pa. at 162, 527
A.2d at 977. This standard is different from the harmless
error analysis that is typically applied when determining
whether the trial court erred in taking or failing to take
certain action. The harmless error standard, as set forth by
this Court in Commonwealth v. Story, 476 Pa. [391],
409, 383 A.2d [155], 164 [ (1978) ] (citations omitted),
states that “[w]henever there is a ‘reasonable possibility’
that an error ‘might have contributed to the conviction,’ the
error is not harmless.” This standard, which places the
burden on the Commonwealth to show that the error did not
contribute to the verdict beyond a reasonable doubt, is a
lesser standard than the Pierce prejudice standard, which
requires the defendant to show that counsel’s conduct had
an actual adverse effect on the outcome of the proceedings.
This distinction appropriately arises from the difference
between a direct attack on error occurring at trial and a
collateral attack on the stewardship of counsel. In a
collateral attack, we first presume that counsel is effective,
and that not every error by counsel can or will result in a
constitutional violation of a defendant’s Sixth Amendment
right to counsel. Pierce, supra.
Gribble, 580 Pa. at 676, 863 A.2d at 472 (emphasis in original).
Id. at 315.
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Finally, we note that:
As a prefatory matter, 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.
Commonwealth v. Maris, 427 Pa. Super. 566, 629 A.2d 1014,
1017 n.1 (1993). Accordingly, a pro se litigant must comply
with the procedural rules set forth in the Pennsylvania Rules of
the Court. Id. This Court may quash or dismiss an appeal if an
appellant fails to conform with the requirements set forth in the
Pennsylvania Rules of Appellate Procedure. Id.; Pa.R.A.P. 2101.
* * *
In the instant case, the defects in Appellant’s brief are
substantial. . . . Nonetheless, in the interest of justice we
address the arguments that can reasonably be discerned from
this defective brief.
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005).
Here, too, Appellant’s pro se brief substantially fails to conform to the
basic requirements of appellate advocacy. Most notably, Appellant cites, but
apparently misapprehends our standard and scope of review. We review the
PCRA court’s findings of fact in the light most favorable to the
Commonwealth as verdict winner to determine if they are supported by the
record. See Spotz, supra at 311; see also Rykard, supra at 1183. We
review the PCRA court’s conclusions of law for specific legal error.
Appellant’s mere general disagreement with the findings of fact or the result
does not establish his right to PCRA relief. Citation of caselaw for general
principles without developing an argument to establish specifically how they
apply to this appeal does not prove legal error.
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Furthermore, as ably explained by counsel in his Turner/Finley letter,
directly addressed to Appellant, Appellant must prove each of his claims of
ineffectiveness under the three-pronged Pierce test to merit relief. (See
Turner/Finley letter, 1/10/14, at 3). “Counsel’s assistance is deemed
constitutionally effective once this Court determines that the defendant
has not established any one of the prongs of the ineffectiveness test.”
Rolan, supra at 406.
With these principles in mind, we review Appellant’s issues.
Appellants’ first two issues both address abandonment. Initially,
Appellant challenges the PCRA court’s conclusion that counsel did not
abandon his client. (See Appellant’s Brief, at 8-10). To prevail on this
claim, Appellant had to show that the court’s findings were not supported by
the record “viewed in the light most favorable to the prevailing party at the
trial level.” Spotz, supra at 311. Therefore, mere disagreement with the
court’s conclusion is not enough. Appellant fails to prove his claim by a
preponderance of the evidence. Appellant’s first claim fails.
Next, Appellant’s second question, which erroneously assumes the
conclusion of his first question (that PCRA counsel abandoned him, despite
the PCRA court finding to the contrary), merits no relief. Counsel did not
abandon Appellant.
Additionally, Appellant argues that counsel’s “no merit” letter was
deficient. (See Appellant’s Brief, at 11-17). Appellant’s reliance on
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counsel’s perceived error (that Appellant’s de facto concession of guilt at the
PCRA hearing virtually precluded PCRA relief) is misplaced, and meritless.
Counsel’s assessment merely articulated the unassailable conclusion
that Appellant, in the face of his admission of the shootings, could not meet
his burden to prove that any alleged claims of ineffectiveness by trial
counsel “so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Spotz, supra at
311-12, (citing 42 Pa.C.S.A. § 9543(a)(2)(ii)). Counsel’s assessment was
correct. As we have already noted, the PCRA court properly decided that
counsel did not abandon his client. We have already determined that
counsel has substantially complied with the dictates of Turner/Finley and
will be permitted to withdraw. (See supra at *9). Appellant’s second issue
has no merit.
Finally, in his third question, Appellant argues he has meritorious
issues. (See Appellant’s Brief, at 23-36). Here, Appellant patently fails to
comply with the Rules of Appellate Procedure. His catch-all grab bag of
undeveloped claims are not set forth in the statement of questions involved
and not fairly suggested thereby. See Pa.R.A.P. 2116(a). Therefore, all of
Appellant’s asserted issues are waived.
Moreover, they would not merit relief. Common to all these claims,
Appellant fails to plead and prove the three Pierce prongs. Furthermore,
several of Appellant’s key issues, such as the photo line-up, claimed
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deficiencies in the identification from a photo array, and the playing of the
chase video, were previously raised on direct appeal. This Court has already
decided that they have no merit. Counsel cannot be faulted for declining to
raise a meritless claim. “[I]t is axiomatic that [trial] counsel will not be
considered ineffective for failing to pursue meritless claims.”
Commonwealth v. Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014)
(citations omitted).
In any event, rather than develop an argument to meet the
Strickland/Pierce test, Appellant’s meandering and unfocussed brief largely
reiterates arguments previously made, in effect inviting this Court to engage
in an impermissible reweighing of much of the evidence previously
presented. We decline to do so. None of Appellant’s claims merit relief.
Moreover, it bears noting that Appellant conceded to the prosecutor in
the PCRA hearing that he shot at the victims. (See N.T. PCRA Hearing,
9/25/13, at 34-35; see also Appellant’s pro se Brief, at 16). However,
Appellant argued that he lacked the intent to kill because he only shot the
victim in the leg:
[APPELLANT:] Now [the prosecutor] is talking about the
femoral artery. So they are saying that because he got shot in
the femoral artery that shows intent to kill. Correct, if I know
that I am intending to shoot you in your femoral artery to kill
you, then yes that show [sic] intent to kill. But if you are
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intending to shoot someone out of anger or frustration, I am a
lay person and I don’t know there is are [sic] femoral artery in
the leg that you can bleed out in two hours. I don’t know that.
I didn’t have the specific intent to kill someone because someone
got shot in their leg. That is my thing.
[PROSECUTOR:] So are you really only contesting the
criminal attempt homicide?
[APPELLANT:] That is why I went to trial, yes.
[PROSECUTOR:] So you would admit to shooting him?
[APPELLANT:] Aggravated assault.
[PROSECUTOR:] Okay.
(N.T. PCRA Hearing, 9/25/13, at 43-44; see also Commonwealth’s Brief, at
7-8).
Appellant argues that “[a] concession of guilt does not, per se,
foreclose prisoner access to Pennsylvania’s PCRA[,]” citing to the PCRA itself
and to Commonwealth v. Haun, 32 A.3d 697, 705 (Pa. 2011) (“We hold
that a concession of guilt does not, per se, foreclose prisoner access to the
PCRA.”).6 (See Petition [&] Rebuttal [ ], 4/29/14, at 5 ¶ 4 (A)).
____________________________________________
6
We note for clarity that the issue of sufficiency of the evidence for
Appellant’s conviction of attempted murder was already decided by our
predecessor panel on direct appeal. (See Freeland, supra at 4-7).
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Nevertheless, in addition to the requirement to meet all three Pierce
prongs, Appellant still has the burden to plead and prove by a
preponderance of the evidence “that his conviction or sentence resulted from
the 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.” Spotz,
supra at 311-12; see also 42 Pa.C.S.A. § 9543(a)(2)(ii).
Here, none of the assertions raised by Appellant support this claim. To
the contrary, Appellant fails to develop any argument or offer citation to
pertinent authority which would support the conclusion that the deficiencies
he alleges undermined the truth-determining process.
In addition to the claims already reviewed, Appellant asserted in his
pro se rebuttal to the petition to withdraw, that PCRA counsel was ineffective
for his purported failure to raise the issue of trial counsel’s failure to object
to the trial court’s answer to a jury question outside of the presence of
counsel. (See Petitioner’s Rebuttal, at 6).
This claim fails all three of the Pierce prongs. It lacks arguable merit.
Counsel had an obvious reasonable strategic basis not to object. And
Appellant fails to show prejudice.
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For supporting authority, Appellant relies on Argiro v. Phillips Oil
Co., 220 A.2d 654 (Pa. 1966).7 Appellant’s reliance is misplaced. Argiro, a
direct appeal from a judgment in a civil case, was overruled in pertinent part
by our Supreme Court in Commonwealth v. Bradley, 459 A.2d 733, 734
(Pa. 1983). The Bradley court explained:
The reason for prohibiting a trial judge from
communicating with a jury ex parte is to prevent the court from
unduly influencing the jury and to afford counsel an opportunity
to become aware and to seek to correct any error which might
occur. Where there is no showing either that the court’s
actions may have influenced the jury or that its directions
were erroneous, then the reason for the rule dissolves.
Id. at 736 (emphasis added) (citations omitted).
Here, Appellant fails to distinguish between the line of authority
addressing the request for instruction, or the reiteration of instructions,
which our Supreme Court has held to implicate protection of the
constitutional right to counsel, (see, e.g., Commonwealth v. Johnson,
828 A.2d 1009, 1015-16 (Pa. 2003)) (prejudice presumed when defendant
denied counsel during reiterative jury instructions), and non-instruction
communications with the jury. See e.g., Bruckshaw v. Frankford Hosp.
of City of Philadelphia, 58 A.3d 102, 115 n.8 (Pa. 2012) (noting, inter
alia, that Bradley “eliminated a presumption of prejudice in a case involving
unauthorized contact between a judge and the jury.”).
____________________________________________
7
Appellant mis-cites Argiro as filed in 1996. (See Rebuttal, at 6).
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In this case, the trial court’s communication, consistent with the
applicable rule of criminal procedure, had nothing to do with instructions to
the jury. The jury did not request an instruction on this issue, and the trial
court did not give one. The trial court did no more than inform the jury that
its request for a copy of the trial transcript was not permitted. The trial
court was correct. See Pennsylvania Rule of Criminal Procedure 646(C)(1)
(“During deliberations, the jury shall not be permitted to have a transcript of
any trial testimony[.]”); see also Charleston, supra at 1024 (no duty to
pursue meritless claim); Koehler, supra at 146 (decision of when to
interrupt oftentimes a function of overall defense strategy).
Because Appellant’s claim is without arguable merit, trial counsel had a
reasonable basis for declining to object. Accordingly, PCRA counsel had no
basis to assert trial counsel’s purported ineffectiveness. Furthermore,
Appellant was not prejudiced by the trial court’s ruling, which properly
followed Pa.R.Crim.P. 646. Appellant’s claim does not merit relief.
Finally, Appellant claims denial of due process in the failure of the trial
court to appoint new counsel prior to trial. (See Appellant’s Brief, at 34-36).
This claim against the trial court does not present a cognizable issue under
the PCRA. See 42 Pa.C.S.A. § 9543; see also Commonwealth v. Smith,
69 A.3d 259, 266 (Pa. Super. 2013), appeal denied, 83 A.3d 168 (Pa. 2013)
(noting that “‘the right to appointed counsel does not include the right to
counsel of the defendant’s choice.’ Rather, the decision to appoint different
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counsel to a requesting defendant lies within the discretion of the trial
court.”) (citations omitted).
Moreover, it would not merit relief. The PCRA court confirmed that it
would not have granted the request for new counsel based on any of the
reasons Appellant gave at the PCRA hearing. (See PCRA Court Opinion,
12/10/13, at 6). Therefore, even if re-framed as a claim of ineffective
assistance of counsel for failure to object, the issue would fail because
Appellant’s underlying claim lacks arguable merit. Furthermore, because the
PCRA court confirmed that it would not have appointed new counsel for any
of the reasons advanced by Appellant, Appellant cannot prove prejudice.
Notably, the PCRA court also resolved all issues of credibility in favor of trial
counsel, and against Appellant. (See id. at 5 n.1).
To summarize, counsel is presumed effective, and to rebut that
presumption, Appellant must demonstrate that counsel’s performance was
deficient and that such deficiency prejudiced him. See Commonwealth v.
Elliott, 80 A.3d 415, 431-32 (Pa. 2013) (claim of ineffectiveness for failure
to raise trial counsel’s lack of preparedness and failure to investigate must
demonstrate that appellant was prejudiced such that outcome of
proceedings would have been different). Appellant must plead and prove all
three prongs of the Strickland/Pierce test to merit relief. See Spotz,
supra at 303 n.3. None of Appellant’s claims merit relief. On independent
review, we find no other claims of merit.
Order affirmed. Petition to withdraw granted.
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J-S48034-14
Jenkins, J., joins the Opinion.
Donohue, J., files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2014
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