Com. v. Wright, K.

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KARIM HUSIEN WRIGHT, :
:
Appellant : No. 648 MDA 2011
Appeal from the PCRA Order entered March 11, 2011,
Court of Common Pleas, Berks County,
Criminal Division at No. CP-06-CR-0004799-2002
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
DONOHUE, ALLEN, LAZARUS, MUNDY and OLSON, JJ.
DISSENTING MEMORANDUM BY DONOHUE, J.: FILED AUGUST 05, 2014
Our Supreme Court has recognized that every PCRA litigant is entitled
Commonwealth v. Alexander,
432 A.2d 182, 186 (Pa. 1981); see also Commonwealth v. Kaufmann,
592 A.2d 69ability to frame the issues in a legally meaningful fashion insures the trial
court that all relevant considerations w
Commonwealth v. Carrier, 431 A.2d 271, 273 (Pa. 1981). Accordingly, by
case in which a defendant has filed a motion for post-conviction collateral
review for the first time and is unable to afford counsel or otherwise procure
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rule mandating the appointment of counsel to first-time petitioners for PCRA
o the naming of an attorney to represent an
accused, but also envisions that counsel so appointed shall have the
opportunity and in fact discharge the responsibilities required by his
representation Commonwealth v. Fiero, 341 A.2d 448, 450 (Pa. 1975)
(emphasis added); see also Commonwealth v. Perez, 799 A.2d 848, 852-
53 (Pa. Super. 2002); Kaufmann, 592 A.2d at 698. The functions of an
advocate in discharging the responsibilities of the representation include
aint, investigation of the
Kaufmann,
592 A.2d at 697 (quoting Commonwealth v. Mitchell, 235 A.2d 148 (Pa.
1967)).
Four attorneys have been appointed to represent Karim Husein Wright
) since the time he filed his first pro se PCRA petition. None of
whatsoever, and in fact all four have failed with respect to their professional
obligations to him. By their own admissions, none of them ever made any
ineffectiveness claims, including no efforts to interview any of the potential
witnesses identified by Wright or to ascertain from his trial counsel what
strategic basis he had for his actions at trial. Likewise, none of these four
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PCRA relief or to provide either the trial court or this Court with a more
articulate statement of his claims than what Wright has himself provided in
pro se
discharge their professional responsibilities). For these reasons, I cannot
st respectfully
dissent.
This embarrassing saga of patently deficient and inexplicably dilatory
performances by appointed counsel begins on May 6, 2005, when Wright
filed a pro se PCRA petition, raising 13 issues. The PCRA court appointed
Attorney Gail C
of the next two years, Attorney Chiodo apparently performed no services on
counsel was the filing of four requests for extensions of time to file an
amended counseled PCRA petition or a Turner/Finley1 no-merit letter. The
PCRA court, without explanation, granted all four requests, providing
Attorney Chiodo with extensions of time until August 12, 2005, October 31,
2005, January 31, 2006, and April 28, 2006. After another year of docket
counsel.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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and appointed Attorney Lara Glenn
Wright, providing her with an extension of time until August 3, 2007 to file
an amended counseled PCRA petition or a Turner/Finley no-merit letter.
Attorney Hoffert likewise apparently performed no services on Wri
November 30, 2007 and then until March 31, 2008. In December 2007,
Attorney Hoffert filed a motion to wi
PCRA court granted.
quarter years, Attorney Daringer filed eight requests for extensions of time.
Without any explanation for permitting such extraordinary and inordinate
delays, the PCRA court granted all eight requests, permitting Attorney
Daringer extensions of time until June 30, 2008, October 31, 2008, February
25, 2009, May 1, 2009, October 30, 2009, December 31, 2009, April 4,
2010, and July 30, 2010. Finally, on August 24, 2010, more than five years
filed a
Turner/Finley withdraw and no
merit brief.
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ineffective assistance of trial counsel.2
claims of
investigate and call witnesses to provide exculpatory testimony on his
behalf, Attorney Daringer made no effort to contact any of these witnesses
to ascertain what testimony they could provide, nor did he seek the
appointment of an investigator to do this work. Similarly, with respect to
-
rejected
for his lack of cross-examination, but did so without ever contacting trial
counsel to ascertain what his actual strategy was (if any). Attorney Daringer
charitably, minimal at best.
2
t. Finley, 550 A.2d at 215.
pro se PCRA petition, the
trial transcript, and researched applicable legal theories. No Merit Letter,
8/24/10, at 2. Other than speaking with Wright, Attorney Daringer does not
indicate that he conducted any other factual investigation.
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After another delay of nearly six months, on February 17, 2011, the
Turner/Finley petition to withdraw
y hearing,
issues. On March 9, 2011, Wright filed a detailed pro se response to the
notice of intent to dismiss, and further claimed that the PCRA court had
erred in granting Attorney
failure to discharge his professional obligations to Wright to investigate his
claims and advocate on his behalf.3 Two days later, on March 11, 2011, the
On Dece
en
banc review. Typically, when counsel has been permitted to withdraw
pursuant to Turner/Finley, new counsel will not be appointed again and the
Commonwealth v. Rykard, 55 A.3d
1177, 1184 n.2 (Pa. Super. 2012) (quoting Commonwealth v. Maple, 559
3
As a result, Wright adequately preserved this issue for appeal. See
Traverse [sic] to February 11, 2011 Notice to Dismiss/Deny P.C.R.A. and
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appointment of new PCRA counsel).
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A.2d 953, 956 (Pa. Super. 1989)). In this case, however, as a result of the
egregious nature of the lack of effort by prior appointed counsel and the
need for Wright to have an advocate on the important issue of the required
standards of performance for PCRA counsel, on October 21, 2013, this Court
issued an order directing the PCRA court to appoint new counsel to represent
Wright during our en banc review.
re rivals, if not
exceeds, those of prior appointed counsel. On January 7, 2014, Attorney
Anders
pursuant to Turner/Finley and not Anders v. California, 386 U.S. 738(1967). As the Majority here forthrightly admits, Attorney Deming failed to
satisfy even the most basic requirements for counsel appointed pursuant to
Turner/Finley, including no attempt to raise (much less discuss) the issues
Anders
and opinions about the case in the most general terms, without any attempt
Chiodo, Hoffert, and Anders
claims or to provide an articulate statement of said claims so that their merit
may be evaluated by this en banc panel.
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Where appointed PCRA counsel fails to comply with Turner/Finley
requirements, the proper procedure is to remand the case to the PCRA court
for the appointment of new counsel. See, e.g., Commonwealth v.
Kenney, 732 A.2d 1161, 1165 (Pa. 1999); Commonwealth v.
Karanicolas, 836 A.2d 940, 948 (Pa. Super. 2003); Commonwealth v.
Glover, 738 A.2d 460, 465 (Pa. Super. 1999). In this case, however, the
Majority has, without explanation for its failure to have new counsel
appointed, proceeded to decide the appeal on the grounds that all of
In my view, this failure to appoint new counsel constitutes more than
the failure to follow normal procedure, and instead amounts to a violation of
eral constitutional
right to counsel for a post conviction collateral proceeding, through the
adoption of Rule 904(C) of the Pennsylvania Rules of Criminal Procedure, our
Supreme Court has determined that an indigent defendant is entitled to
counsel to aid him in the completion of his first petition seeking PCRA relief,
regardless of the merits of his claim. Commonwealth v. Peterson, 683
A.2d 908, 910 (Pa. Super. 1996). In Finley, this Court interpreted the
Turner to require that in Pennsylvania, a
effective representation of
Finley, 550 A.2d at 214 (emphasis
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at which a trial court may determine that a PCRA petitioner's claims are
frivolous or meritless is after the petitioner has been afforded a full and
Peterson, 683 A.2d at 910(emphasis added); see also Commonwealth v. Harris, 553 A.2d 428, 433
(Pa. Super. 1989) (same).
As a result of the repeated failures of all counsel appointed to
represent him, Wright has not been afford any opportunity to have effective
counsel present his claims for proper consideration. Thus, the M
best be described as an incomplete and undeveloped record. As indicated,
those claims have never been developed or articulated by competent
counsel.
could have changed the outcome of the trial. Majority Memorandum at 11.
provided this explanation. Moreover, even on the current record, I cannot
say that this claim lacks merit. According to Wright, Freytiz would testify
that he frisked Wright when he entered the nightclub and that Wright was
unarmed. Freytiz would further testify that Wright did not leave the
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nightclub from the time of his initial entry until the subsequent shooting
(e.g.
evidence that Wright was unarmed while inside the nightclub, and thus did
for challenging the credibility of the testimony of Holmes, the lone
eyewitness to the shooting called by the Commonwealth at trial.
testimony that he saw Wright pull a gun out of his pocket and shoot the
victim. Testimony that Wright entered the nightclub unarmed would also
have called into question the importance of the testimony of Lynnita
eparted for the nightclub with the clear implication
it is certainly possible that Wright entered the nightclub unarmed but later
obtained a gun from someone while inside, the Commonwealth introduced
no evidence to this effect.
[Wright] does not suggest he could, that he saw [Wright] with or without a
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4
No Merit Letter, 8/24/10, at
Daringer made his determination regarding lack of prejudice without
represent Wright for nearly three years, Attorney Daringer made no attempt
to contact Freytiz to determine the extent of his knowledge regarding the
events that occurred on the night in question, including his recollection of
e or difficulty
in having someone else provide Wright with a gun after his entry, and/or
hearing. Attorney Daringer likewise did not seek the appointment of an
5
investigator t Cf.
4
that Wright did not give him as much information as possible to investigate
and contact Freytiz and other witnesses. Majority Memorandum at 4.
the names and possible testimony of each witness, but does not indicate
that he requested any other information that was not forthcoming. In
ides no explanation as to how the absence
of any such (unidentified) information precluded Attorney Daringer from
contacting these witnesses.
5
Anders
practicability standpoint, the Berks County Court of Common Pleas is less
20. In his pro se Brief in Opposition to Anders Brief, Wright astutely asks
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Commonwealth v. Brown, 767 A.2d 576 (Pa. Super. 2001)
(ineffectiveness claims for failure to call witnesses determined to be
meritless after a court-appointed investigator could not locate them).
The M
ineffective for failing to call bartender Sam Castillo, again merely because
outcome of the trial. Majority Memorandum at 11. In October 2005, Castillo
signed an affidavit that states as follows:
Before me the subscriber personally appeared
Samuel Castillo to be known, who being duly sworn
working at tunnel the night of the shooting
minutes before the shooting I was serving [Wright]
and few people around him he was sitting to left of
the bar I was serving drinks for someone else when I
heard to shoots I duck behide the bar running I open
the basement door and ran out I remember [Wright]
No Merit Letter, Exhibit A, 8/24/10 (without correction of spelling or
punctuation in original). As with Freytiz, Attorney Daringer re
any other individual as the shooter. Id. at 6. Attorney Daringer noted that
while Cast
himself, or to seek the appointment of an investigator to do so for him,
clearly reflects his lack of advocacy in this regard.
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before after the
moment of the shooting.
any attempt to locate and interview Castillo. This failure is particularly
significant with respect to Castillo since his affidavit is poorly written,
obviously uncounseled, and raises more questions than it answers. Prior to
defense, one would need considerably more information that what is
contained in the affidavit, including, for example, how far away Wright was
from the precise location of the shooting when he saw him sitting to the left
of the bar; whether he saw Wright get up from his seated location before the
shooting; how soon after hearing the shots did he see Wright running out
the back door; whether he observed any visible signs that Wright had just
been involved in a fistfight; and any other reasons for his belief that Wright
was not the shooter. Absent any such information from Castillo, however,
and despite no apparent efforts to locate and interview him, Attorney
Da
outcome of the case.
Moreover, as with Freytiz, Attorney Daringer did not attempt to
cannot conclude that this issue lacks any merit. Attorney Daringer
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essentially concluded that only an eyewitness to the shooting, who can
identify the actual perpetrator of the crime, may offer testimony sufficient to
ey Daringer
cited to no authority for this proposition, and I am not aware of any such
Wright, as it places him next to Castillo and away from the location of the
shooting immediately after, or shortly after, Castillo heard the shots. In
back door directly
out the front door of the nightclub after the shooting. N.T., 3/25/03, at
192.
trial counsel was ineffective for failing to call the mother of Felicia Martin to
-in-chief that she was
at the nightclub and heard shots fired. N.T., 3/26/03, at 410-14. She
further testified that she was subsequently interviewed by Investigator
Christopher Santoro, and told him that she did not see who fired the shots.
Id. She said that Investigator Santoro accused her of lying, and threatened
that she should admit that she saw Wright shoot the victim since Wright,
knowing that she had been interviewed by the police, would kill her mother
and little brother and possibly herself (Felicia) as well. Id. The
Commonwealth then called Investigator Santoro in rebuttal, at which time
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he testified that while he had conducted an interview with her in an effort to
procure her testimony, he had said nothing to convey threats to her mother
or little brother. Id. at 414-21. To the contrary, Investigator Santoro
testified that he did not even know that Felicia Martin had a mother or a
little brother. Id.
Attorney Daringer concluded that this ineffectiveness claim was
meritless because Felicia Martin testified that she did not see the shooter
No Merit Letter, 8/24/10, at 7. This response reflects a clear lack of
advocacy by Attorney Daringer, however, as Wright wanted Felicia Ma
mother to testify for an entirely different purpose namely in sur rebuttal to
Felicia Martin to identify Wright as the shooter with threats against her and
her family mem
testify that Investigator Santoro clearly knew of her existence because she
personally met with him and inquired regarding the substance of the
on of Order and Notice of
some significance, since he was later involved in acquiring the eyewitness
testimony of approximately a week and a half
prior to the start of trial. N.T., 3/25/03, at 195.
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Based upon the current state of the record on appeal, I cannot say
prejudicial to support a claim of ineffective assistance of counsel. I note,
however, that Attorney Daringer, in making no attempt to advocate on
when combined with that of Freytiz, Castillo, and other witnesses, could
cumulatively result in
ineffectiveness claims. Our Supreme Court has repeatedly held that even
when individual claims of ineffective assistance of counsel fail for a lack of
ims may
Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa.
2011); Commonwealth v. Lesko, 15 A.3d 345, 376 (Pa. 2011);
Commonwealth v. Johnson
instances of deficient performance are found, the assessment of prejudice
Wright also claims that his trial counsel was ineffective for failure to
thoroughly cross-examine and impeach Holmes, which the trial court
trial. Order and Notice of
police that he had not seen the shooting and thus could not identify the
shooter; his pending drug charges at the time of his testimony; and that
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Holmes testified that the shooter used his left hand to shoot the gun, while
Wright is right-handed. Holmes testified that he initially lied to the police
because he was on parole and was thus fearful of the consequences if the
questions on this point, and did not press Holmes on the apparent
inconsistency in his explanation for lying since he had immediately told the
police that he was at the nightclub and only lied about not knowing the
identity of the shooter. Id. In total, the entire cross-examination of Holmes
covers just over three pages of the trial transcript. See id. at 198-201.
Attorney Daringer concluded that this ineffectiveness claim lacked
merit because trial counsel had a reasonable strategic basis for his actions:
-examination shows
that he had a very sound strategy for his questioning
and limiting the amount of time and information
needed from Mr. Holmes. Trial counsel appears to
have recognized that Mr. Holmes was a very
effective Commonwealth witness and limiting Mr.
nce before the jury was an
important part of the defense strategy.
No Merit Letter, 8/24/10, at 10.
without ever contacting trial counsel to inquire as to what his actual
strategies
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not satisfied merely because appointed counsel (or the PCRA court) is able
to concoct a strategic basis that fits with t
See, e.g., Commonwealth v. Duffey, 855 A.2d 764, 775 (Pa. 2004) (in
ineffectiveness inquiry is always upon counsel, and not upon an alleged
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa.
2012) (quoting Commonwealth v. Colivita, 993 A.2d 874, 896 (Pa.
2010)). Only where the record on appeal clearly establishes the reasonable
basis prong may the issue be decided without an evidentiary hearing to
Commonwealth v. Williams,
899 A.2d 1060, 1065 (Pa. 2006) (citing Commonwealth v. McGill, 832
A.2d 1014 (Pa. 2003)); see also Commonwealth v. Gribble, 863 A.2d
455, 473-
lacked a reasonable basis for his or
Nothing in the certified record on appeal establishes what trial
-examination of
Holmes as he did. In fact, the record does not disclose that counsel even
considered his cross-examination to be limited, that he intentionally declined
to ask Holmes any other questions he considered relevant and useful to
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the Commonwealth. Accordingly, Attorney Daringe
constitutes mere guesswork and reflects a clear lack of advocacy on behalf
of Wright.
For these reasons, based upon the failures of all appointed counsel,
most recently Attorney Deming, this case should be remanded for the
appointment of new counsel to represent Wright in connection with his first
PCRA petition. In my view, the trial court erred in granting Attorney
Turner/Finley petition to withdraw from representation, and the
Majority here has missed the opportunity to provide clear guidance with
respect to the professional obligations of appointed counsel in PCRA cases.
This Court should not affirm the dismissal of PCRA petitions when appointed
counsel has thoroughly failed to satisfy his or her obligations.
Accordingly, I dissent.
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