Com. v. Minngia, T.

J-S56003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYLER JASON MINNGIA
Appellant No. 454 MDA 2014
Appeal from the PCRA Order February 14, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000024-2010
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 30, 2014
Appellant, Tyler Jason Minngia, appeals from the order entered
February 14, 2014, by the Honorable Thomas G. Parisi, Court of Common
1
pet -appointed counsel, Osmer S. Deming,
Esquire, has filed an application to withdraw as counsel. After careful
application to withdraw as counsel.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 PA.CONS.STAT.ANN. § 9541, et seq.
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Following a jury trial on March 14, 2011, Minngia was convicted of
Burglary, 18 PA.CONS.STAT.ANN. § 3502(a), Criminal Trespass, 18
PA.CONS.STAT.ANN. § 3503(a)(1)(ii), Receiving Stolen Property, 18
PA.CONS.STAT.ANN. § 3925(a), Recklessly Endangering Another Person, 18
PA.CONS.STAT.ANN. § 2705, and Conspiracy, 18 PA.CONS.STAT.ANN. §
903(a)(1). Minngia was subsequently sentenced by the trial court on March
15, 2011 to an aggregate period of not less than 5½ nor more than 15
docket no. CP-06-CR-59-2009. No post-sentence motions were filed. On
See
Commonwealth v. Minngia, 40 A.3d 198 (Pa. Super., filed Dec. 20, 2011)
(Table).
On January 10, 2013, Minngia filed a pro se PCRA petition. The PCRA
court subsequently appointed counsel, and on September 30, 2013, counsel
filed an amended PCRA petition. Following a hearing held on December 16,
2013, See Order, 2/14/14.
This timely appeal followed.
-appointed counsel
has submitted an Anders2 brief, which is procedurally proper for counsel
____________________________________________
2
Anders v. California, 386 U.S. 738 (1967).
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seeking to withdraw on direct appeal. This appeal, brought after the denial
of his PCRA petition, is a collateral appeal.
Pennsylvania law requires counsel seeking to withdraw from
-
to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (1988) (en banc). See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003).
an Anders brief provides
greater protection to the defendant, we may accept an Anders brief in lieu
of a Turner/Finley Commonwealth v. Fusselman, 866 A.2d
1109, 1111 n.3 (Pa. Super. 2004). Accordingly, we will now proceed to
ion to withdraw meets the criteria required
under a Turner/Finley analysis.
Counsel petitioning to withdraw from PCRA representation
must proceed ... under [Turner, supra and Finley, supra and]
... must review the case zealously. Turner/Finley counsel must
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appeal to this Court, detailing the nature and extent of counsel's
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
***
[W]here counsel submits a petition and no-merit letter that
... satisfy the technical demands of Turner/Finley, the court
trial court or this Court must then conduct its own review of the
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merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted).
Here, counsel has complied with the foregoing procedural
requirements. Accordingly, we will proceed to examine whether any of the
issues counsel raises on appeal are of merit:
I.
adequately cross[-]examine Kimberly Weni[]ger and failing
to impeach her testimony?
II. Was there prosecutorial misconduct on the part of the
Commonwealth for failing to disclose that witness Henry
Caraballo pleaded guilty prior to trial in exchange for a
promise of a lenient sentence for testifying?
III. failing to
direct appeal?
Anders brief at 6 (unnecessary capitalization omitted).
On
appeal from the denial of PCRA relief, our standard and scope of review is
the record and without legal error. Commonwealth v. Edmiston, 65 A.3d
339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.
Pennsylvania
the findings of the PCRA court and the evidence of record, viewed in the light
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Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted).
In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 PA.CONS.STAT.ANN.
§ 9543(a)(2). These issues must be neither previously litigated nor waived.
42 PA.CONS.STAT.ANN. § 9543(a)(3). de novo
Commonwealth
v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
prosecutorial misconduct is waived because it was not raised at trial or on
[f]or purposes of
this subchapter, an 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
PA.CONS.STAT.ANN. § 9544(b).
Minngia could have raised his allegation of prosecutorial misconduct at trial
or on direct appeal, but did not do so. Therefore, this issue is waived. 3
counsel as follows:
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3
Minngia notably does not allege that counsel was ineffective for failing to
object to the alleged prosecutorial misconduct, nor does the record support
such an assertion.
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In order for Appellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, 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
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of
the proceedings would have been different.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).
the b Commonwealth v. Springer, 961 A.2d
1262, 1267-
Appellant satisfies each of the three prongs necessary to prove counsel
Commonwealth v. Natividad, 595 Pa. 188, 208, 938 A.2d
Id., 595 Pa. at 207-
208, 938 A.2d at 321.
Minngia first argues that trial counsel was ineffective for failing to
adequately cross-examine witness Kimberly Weniger. Specifically, Minngia
by showing her previous inconsistent statements that she allegedly made to
the police regarding her involvement in the burglary. See Anders brief at
13.
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Pennsylvania Rule of Evidence 613(a) provides the following guidance
on impeachment by prior inconsistent statement:
A
witness may be examined concerning a prior inconsistent
statement made by the witness to impeach the witness's
credibility. The statement need not be shown or its contents
disclosed to the witness at that time, but on request the
statement or contents must be shown or disclosed to an adverse
Pa.R.E. 613(a) (emphasis added). Based on the clear language of the rule,
trial counsel is under no obligation to show or otherwise confront the witness
with the contents of the prior inconsistent statement attributed to the
witness. We therefore cannot find trial counsel ineffective for failing to do
something he was under no obligation to do. We further note that our
review of the trial transcript reveals counsel aptly cross-examined the
witness regarding her prior inconsistent statements to police without
showing the witness the content her prior statements. See N.T., Trial,
3/14/11 at 125-129. Accordingly, this claim fails.
Lastly, Minngia argues that appellate counsel was ineffective for failing
to raise allegations of ineffective assistance of trial counsel on direct appeal.
See Anders brief at 21-22. At the time of the direct appeal, it was well
it to raise claims of ineffective
Commonwealth v.
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Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002).4
appeal was in perfect accordance with the law and did not preclude Minngia
final allegation of ineffective assistance of counsel to be unavailing.
Based on the foregoing, we agree wit
-conviction relief and grant
Order affirmed. Petition to withdraw as counsel is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
____________________________________________
4
While the direct appeal was pending, this Court decided Commonwealth
v. Barnett, 25 A.3d 371 (Pa. Super. 2011) (en banc). In that case, the en
banc
Id. at 377 (citing Commonwealth
v. Liston, 602 Pa. 10, 22, 977 A.2d 1089, 1096 (2009) (Castille, C.J.,
concurring)).
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