Com. v. Poteet, E., Sr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDDIE JOE POTEET, SR. :
:
Appellant : No. 1353 MDA 2021
Appeal from the PCRA Order Entered September 22, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006263-2015
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: OCTOBER 24, 2022
Appellant, Eddie Joe Poteet, Sr., appeals from the order entered on
September 22, 2021, dismissing his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate the
order and remand.
This Court previously summarized the facts and procedural history of
this case as follows:
In January 2000, Appellant began sexually abusing [his
daughter], who was then four years old. The abuse continued until
she was approximately ten years old. The [v]ictim did not report
the abuse immediately because she feared Appellant would
physically harm her and others. On July 16, 2015, she reported
the abuse to the police.
In September 2017, following trial, a jury convicted Appellant of
[involuntary deviate sexual intercourse, criminal attempt (rape),
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indecent assault, corruption of minors, and incest.1] The trial court
sentenced him to an aggregate term of twenty to forty years of
incarceration. In addition, the court informed Appellant that he
was required to register as a sexual offender.
Appellant timely filed a [p]ost-[s]entence motion, which the trial
court denied. Appellant did not file a direct appeal.
In June 2018, Appellant timely filed a [PCRA p]etition[,] seeking
the reinstatement of his appellate rights nunc pro tunc. The
court granted relief.
Commonwealth v. Poteet, 249 A.3d 1126, at *1 (Pa. Super. 2021)
(unpublished memorandum) (original footnote omitted). We ultimately
affirmed Appellant’s judgment of sentence in an unpublished memorandum
decision on February 3, 2021.
Thereafter, as the PCRA court recounts:
On March 2, 2021, Appellant filed a [PCRA] petition [] and on April
26, 2021, Appellant filed an amended [PCRA] petition[.] On
August 9, 2021, a hearing on Appellant’s [PCRA] petition[s] was
rescheduled for the third time [until] September 22, 2021. On
September 16, 2021, Appellant filed a witness certification for
Brian A. McNeil, Esquire with proof of service. On September 17,
2021, [Appellant] filed a witness certification for Ronald J. Gross,
Esquire. On September 22, 2021, [Appellant] filed a witness
certification for Jay Whittle, Esquire with proof of service. A
[PCRA] hearing [] was held before [the PCRA] court on September
22, 2021.
At the hearing on September 22, 2021, the Commonwealth made
a motion to dismiss based on (1) the insufficiency of the witness
certifications, (2) that the claim [raised] had been previously
litigated, and (3) that trial counsel had failed to file a written
motion to pierce the Rape Shield [Law]. After hearing arguments
from both parties, the PCRA court dismissed Appellant’s [PCRA]
____________________________________________
118 Pa.C.S.A. §§ 3123(b), 901(a)/3121(c), 3126(a)(7), 6301(a)(1)(i), and
4302(a), respectively.
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petition[s] based upon the Commonwealth’s [arguments].[2] On
October 4, 2021, Appellant filed a motion for reconsideration of
[the] denial of [his] PCRA petition[s] and a memorandum of law
in support of reconsideration, and [the PCRA] court denied
Appellant’s motion for reconsideration on October 15, 2021.
On October 20, 2021, Appellant filed a notice of appeal. [On
November 4, 2021, the PCRA court granted Appellant’s motion for
an extension of time to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P.] 1925(b)]. On
December 9, 2021, Appellant filed [his Rule 1925(b)] statement[.]
The [PCRA] court [] issue[d an opinion pursuant to Pa.R.A.P.]
1925(a) [on December 15, 2021].
PCRA Court Opinion, 12/15/2021, at 4-5 (superfluous capitalization omitted).
The PCRA court cited Appellant’s failure to comply with 42 Pa.C.S.A.
§ 9545(d) and the inadequacy of his witness certifications as grounds for
dismissing Appellant’s amended petition. More specifically, regarding the
witness certifications proffered in support of Appellant’s PCRA claims, the
PCRA court opined:
Here, Appellant filed three witness certifications less than one
week before the scheduled PCRA hearing. Further, the witness
certification for Appellant’s trial counsel, Jay Whittle, Esquire was
filed on the same day as the scheduled PCRA hearing. Appellant
had substantial time to prepare witness certifications long before
the week and day of the PCRA hearing because the PCRA hearing
was scheduled for a date in September of 2021, [nearly] five
months after Appellant filed his [a]mended [PCRA p]etition [] in
April of 2021. Appellant’s undue delay in filing witness
certifications, especially filing a witness certification mere hours
____________________________________________
2 Upon review of the certified record, the PCRA court did not hear any
testimony from Appellant or the three proffered attorney witnesses at the
PCRA hearing. N.T., 9/22/2021, at 1-15. Instead, the PCRA court only heard
argument from PCRA counsel and the Commonwealth regarding alleged
deficiencies in the witness certifications. The PCRA court denied PCRA
counsel’s request to file proper witness certifications and dismissed the case.
Id. at 14-15.
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before the start of the PCRA hearing, was prejudicial to the
Commonwealth by precluding the Commonwealth an opportunity
to investigate the witness identified in the certification.
Additionally, because each of Appellant’s witness certifications
neglected to provide the substance of each witness's testimony,
[the PCRA c]ourt [found] that Appellant failed to comply with 42
Pa.C.S.[A. §] 9545(d).
* * *
Due to Appellant’s pending appeal to the Superior Court of
Pennsylvania, [the PCRA c]ourt [concluded it] lack[ed] jurisdiction
to [o]rder Appellant to file a subsequent PCRA [petition].
However, [the PCRA c]ourt [found] that PCRA counsel was
ineffective for filing inadequate witness certifications that did not
substantially comply with [the requirement in 42 Pa.C.S.A.
§ 9545(d) to include the substance of trial counsel’s and
Appellant’s anticipated testimony]. Therefore, [the PCRA c]ourt
request[ed] the Superior Court of Pennsylvania to reinstate
Appellant’s rights to [PCRA] relief to allow Appellant to pursue the
initial claims raised in his PCRA [petition regarding] effective
assistance of counsel.
Id. at 6-7.
The PCRA court offered additional grounds for the dismissal of
Appellant’s amended petition. Specifically, the PCRA court determined that
Appellant previously litigated on direct appeal his claim that the trial court
erred in barring admission of evidence that the victim made false accusations
against another individual. In view of this ruling on direct appeal, the PCRA
court reasoned that Appellant could not raise a related claim alleging trial
counsel’s ineffectiveness in failing to proffer evidence of the victim’s prior false
accusations. The PCRA court opined:
The PCRA court did not err in dismissing the [amended PCRA
petition] because the Superior Court of Pennsylvania decided this
preclusion of evidence issue, and affirmed the trial court’s decision
to preclude questioning the victim on prior accusations of sexual
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assault against another individual. []Even if the Rape Shield Law
did not bar the evidence, Appellant has failed to show how [the
victim’s] prior accusations of sexual assault were relevant in the
instant case. Evidence is relevant when it has a tendency to make
a fact more or less probable than it would be without the evidence.
Whether or not [the victim] accused another person of sexually
assaulting her does not make it more or less probable that
Appellant assaulted her.
* * *
Here, the Superior Court of Pennsylvania has previously made a
decision on this allegation by stating, “We agree that the trial court
properly excluded Appellant from cross-examining the [v]ictim
about whether she had accused someone else of sexual assault.”
Therefore, [] the PCRA court did not err in dismissing the
[a]mended [PCRA petition] because the issue of precluding
Appellant from cross-examining the [v]ictim about whether she
had accused someone else of sexual assault was decided by the
Superior Court on direct appeal.
Id. at 8-9 (footnotes and citations omitted).
On appeal, Appellant presents the following issues for our review:
A. Whether the PCRA court erred in dismissing the amended
[petition] for post-conviction collateral relief by finding that the
witness certifications filed [regarding] trial counsel’s and
[Appellant’s] testimony failed to substantially comply with
[the] notice requirement under 42 Pa.C.S.[A. §] 9545(d)?
B. Whether prior PCRA counsel [ ] was ineffective for filing witness
certifications that did not substantially comply with notice
[requirements regarding] trial counsel’s and [Appellant’s]
testimony under 42 Pa.C.S.[A. §] 9545(d)? (This claim is
asserting prior PCRA counsel’s ineffectiveness and is raised on
appeal based on new counsel for [Appellant] being appointed
pursuant to Commonwealth v. Bradley, [261 A.3d 381](Pa.
2021).)
C. Whether prior PCRA counsel [ ] was ineffective for failing to
comply with and provide for the procedural requirements of the
Rape Shield Law within the witness certifications under 42
Pa.C.S.[A. §] 9545(d) regarding evidence that the victim made
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false accusations against another individual? (This claim is
asserting prior PCRA counsel’s ineffectiveness and is raised on
appeal based on new counsel for [Appellant] being appointed
pursuant to Commonwealth v. Bradley, [261 A.3d 381](Pa.
2021).)
D. Whether the PCRA court erred in dismissing the amended
motion for post-conviction collateral relief based upon a finding
that the claim that trial counsel was ineffective for fail[ing] to
specifically present a pro[f]fer to the trial court that the victim
made false accusations against another individual was
previously litigated on direct appeal?
Appellant’s Brief at 4-5 (complete capitalization omitted).
Although presented as four separate appellate issues, the issues can be
fairly divided into two distinct claims. First, Appellant asserts that prior PCRA
counsel was ineffective for failing to file proper, timely witness certifications
in support of his underlying PCRA claims. Id. at 18-33. Appellant contends
that the “PCRA [c]ourt failed to identify the insufficiencies of the [w]itness
[c]ertifications” prior to dismissing his PCRA petition and “denied PCRA
[c]ounsel for Appellant the opportunity to cure any defect[.]” Id. at 16.
Citing Bradley, Appellant argues that prior PCRA counsel’s ineffectiveness is
apparent from the record and that this appeal is the first opportunity to
present his layered ineffective assistance of counsel claim. Id. at 29-32. In
support, Appellant cites the portion of the PCRA court’s opinion wherein it
concedes that Appellant’s collateral rights should be reinstated. Id. at 32.
Next, Appellant argues that the PCRA court erred by determining that his claim
that trial counsel was ineffective for failing to proffer evidence that the victim
made false accusations against another individual was previously litigated on
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direct appeal. Id. at 33-35. Appellant avers that “the claim that was litigated
and affirmed on direct appeal [went to] the admissibility of the evidence of
the victim making claims of sexual abuse against another.” Id. at 34.
Appellant claims that his derivative and distinct claim is that trial counsel failed
to proffer evidence suggesting the victim had fabricated the alleged prior
incident, misled authorities, or that she recanted her other allegation under
scrutiny. Id. at 35. Appellant claims that his claim of ineffective assistance
of counsel is legally distinct from the underlying evidentiary claim presented
on direct appeal. Id. at 34. For the reasons that follow, we agree that a
remand is necessary to allow Appellant to develop these claims.3
“This Court's standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error.” Commonwealth v.
Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (citation omitted). “The PCRA
court's findings will not be disturbed unless there is no support for the findings
in the certified record.” Id. (citation omitted). “The PCRA court's factual
determinations are entitled to deference, but its legal determinations are
subject to our plenary review.” Id. (citation omitted).
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3 The Commonwealth concedes that Appellant is entitled to a remand on both
issues. See Commonwealth’s Brief at 16 (“Thus, a remand is necessary for a
new PCRA [p]etition to be filed with proper certifications of both trial and
[a]ppellate [c]ounsel, so that the layered ineffectiveness claim can be properly
analyzed.”); see also id. at 24 (“The PCRA court did err in dismissing the
[a]mended [PCRA petition] because the issue was not previously litigated
[because Appellant’s] claim of ineffectiveness is separate from his claim on
[direct] appeal that the evidence should have been admitted as presented.”)
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The Pennsylvania Supreme Court has recently determined that “a PCRA
petitioner [may] raise claims of ineffective assistance of counsel at the first
opportunity to do so, even on appeal.” Commonwealth v. Bradley, 261
A.3d 381, 401 (Pa. 2021). The Bradley Court noted:
In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such
claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petitioner would be required to
provide more than mere boilerplate assertions of PCRA counsel's
ineffectiveness; however, where there are material facts at issue
concerning claims challenging counsel's stewardship and relief is
not plainly unavailable as a matter of law, the remand should be
afforded.
[…A]n appellate court will not be tasked with developing the
record or acting as a court of original jurisdiction. Rather,
appellate courts will have the ability to grant or deny relief on
straightforward claims, as well as the power to remand to the
PCRA court for the development of the record.
Bradley, 261 A.3d at 402–403 (internal citations, quotations, and original
brackets omitted).
Pursuant to 42 Pa.C.S.A. § 9545(d), when a PCRA petitioner requests
an evidentiary hearing, they must “include a certification signed by each
intended witness stating the witness's name, address, date of birth and
substance of testimony[.]” 42 Pa.C.S.A. § 9545(d)(1)(i). The petitioner or
counsel may sign the certification if they are “unable to obtain the signature
of a witness[.]” 42 Pa.C.S.A. § 9545(d)(1)(ii). However, an en banc panel of
this Court has stated “it is improper to affirm a PCRA court's decision [to deny
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relief] on the sole basis of inadequate witness certifications where the PCRA
court did not provide notice of the alleged defect.” Commonwealth v.
Pander, 100 A.3d 626, 642 (Pa. Super. 2014) (en banc), citing Pa.R.Crim.P.
905(B) (“When a petition for post-conviction collateral relief is defective as
originally filed, the judge shall order amendment of the petition, indicate the
nature of the defects, and specify the time within which an amended petition
shall be filed. If the order directing amendment is not complied with, the
petition may be dismissed without a hearing.”).
Finally, our Supreme Court has explained
claims of trial counsel ineffectiveness deriving from an underlying
claim of error that was litigated on direct appeal cannot
automatically be dismissed as “previously litigated.” Rather, Sixth
Amendment claims challenging counsel's conduct at trial are
analytically distinct from the foregone claim of trial court error
from which they often derive, and must be analyzed as such. To
succeed on a claim of counsel ineffectiveness, of course, the
defendant must rebut the presumption of competence and
demonstrate [prejudice].
Commonwealth v. Puksar, 951 A.2d 267, 274 (Pa. 2008) (internal citations
omitted).
Applying the foregoing principles, we vacate the order dismissing
Appellant’s amended petition and remand this case to allow Appellant to
develop his claims. First, the PCRA court erred by dismissing Appellant’s
amended PCRA petition based solely upon defective witness certifications.
See Pander, supra. Moreover, this appeal is the first opportunity Appellant
has had to raise the issue of prior PCRA counsel’s ineffectiveness with the
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assistance of new counsel. See Bradley, supra. As such, we vacate the
PCRA court’s dismissal order and remand to allow Appellant to file an amended
PCRA petition with proper witness certifications and afford him the opportunity
to develop his claims with more attentive counsel.
Moreover, regarding Appellant’s claim that trial counsel was ineffective
for failing to proffer evidence that the victim made false accusations against
another individual, we conclude that the PCRA court erred by finding the issue
was previously litigated on direct appeal. On direct appeal, “[w]e agree[d]
that the trial court properly precluded Appellant from cross-examining the
[v]ictim about whether she had accused someone else of sexual assault
[because] Appellant did not proffer evidence suggesting that the [v]ictim had
fabricated this prior incident, that she went to the authorities and misled them,
or that she recanted her allegation under scrutiny.” Commonwealth v.
Poteet, 249 A.3d 1126, at *6 (Pa. Super. 2021) (unpublished memorandum).
Currently, Appellant is challenging trial counsel’s stewardship for failing to
proffer evidence which would have permitted cross-examination of the victim.
As such, while derivative of the underlying claim addressed on direct appeal,
Appellant’s ineffective assistance of counsel is distinct and, therefore, it was
improper for the PCRA court to find that Appellant’s claim was previously
litigated. Hence, we vacate the order dismissing Appellant’s PCRA petition
and remand this matter for further proceedings.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2022
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