Com. v. Longo, J.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOSEPH E. LONGO, JR., : No. 2505 EDA 2016
:
Appellant :
Appeal from the PCRA Order, July 8, 2016,
in the Court of Common Pleas of Wayne County
Criminal Division at No. CP-64-CR-0000015-2012
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 15, 2017
Joseph E. Longo, Jr., appeals from the order of July 8, 2016, denying
his PCRA1 petition. Appointed counsel, Oressa P. Campbell, Esq., has filed a
petition to withdraw. After careful review, we affirm the order denying
appellant PCRA relief and grant the petition to withdraw as counsel.
The underlying facts of this case, which are not germane to this
appeal, were set out by this court in a memorandum decision affirming
appellant’s judgment of sentence on direct appeal. Commonwealth v.
Longo, No. 1363 EDA 2013, unpublished memorandum at 1-3 (Pa.Super.
filed March 3, 2014).2 Following a non-jury trial, appellant was found guilty
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
Commonwealth v. Longo, 100 A.3d 292 (Pa.Super. 2014).
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of one count each of aggravated indecent assault of a child and indecent
assault -- complainant less than 13 years of age.3 The charges related to
appellant’s sexual assault of the 6-year-old victim, A.R. On April 4, 2013,
appellant was sentenced to an aggregate of 10 to 20 years’ imprisonment.
Appellant did not file post-sentence motions, but did file a timely direct
appeal. On March 3, 2014, this court affirmed the judgment of sentence.
Id. Appellant did not file a petition for allowance of appeal with the
Pennsylvania Supreme Court.
On March 2, 2015, appellant filed a timely pro se PCRA petition.
Counsel was appointed and filed several amended petitions on appellant’s
behalf. On June 20, 2016, an evidentiary hearing was held, at which
appellant and trial counsel, Alfred G. Howell, Esq., testified. On July 8,
2016, appellant’s petition was denied. This timely appeal followed.
In her brief on appeal, Attorney Campbell has raised the following
issues for this court’s review:
I. Are there any non-frivolous issues preserved
for appeal?
II. Whether the Trial Court erred in determining
that Trial Counsel did not render ineffective
assistance of counsel and that no
Constitutional violations occurred[?]
III. Whether the Trial Court erred in determining
that the Appellant failed to establish that an
actual conflict of interest adversely affected his
lawyer’s performance[?]
3
18 Pa.C.S.A. §§ 3125(a)(1), (b), & 3126(a)(7), respectively.
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IV. Whether the Trial Court erred in determining
that the Appellant failed to state why the filing
of the pretrial motions would have affected the
outcome of the case[?]
V. Whether the Trial Court erred in determining
that the Appellant failed to show how his
understanding of a [written] waiver [of his
right to a] jury trial was constitutionally
impaired by his trial counsel[?]
Appellant’s brief at 5.
Initially, we note that Attorney Campbell has filed an Anders brief
rather than a Turner/Finley “no-merit” letter. Anders v. California, 386
U.S. 738 (1967); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On
an appeal from the denial of a PCRA petition, a Turner/Finley letter is the
appropriate filing. However, we may accept an Anders brief instead. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied, 882 A.2d 477 (Pa. 2005) (“[B]ecause an Anders
brief provides greater protection to the defendant, we may accept an
Anders brief in lieu of a Turner/Finley letter.”). See also
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (guiding
Pennsylvania courts’ application of Anders). Despite counsel’s error, we
find that she has substantially complied with the Turner/Finley
requirements. Hence, we overlook her procedural misstep. In addition,
Attorney Campbell has attached a copy of the letter to appellant advising
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him of counsel’s intention to withdraw and of his rights going forward.
(“Anders Brief,” Appendix B.) See Commonwealth v. Friend, 896 A.2d
607, 615 (Pa.Super. 2006) (“PCRA counsel must contemporaneously forward
to the petitioner a copy of the application to withdraw, which must include
(i) a copy of both the ‘no-merit’ letter, and (ii) a statement advising the
PCRA petitioner that, in the event the [] court grants the application of
counsel to withdraw, the petitioner has the right to proceed pro se, or with
the assistance of privately retained counsel” (footnote omitted)). Appellant
has not responded to Attorney Campbell’s petition to withdraw.
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. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[W]e begin with the presumption that counsel was
effective. A claimant establishes ineffective
assistance of counsel when he demonstrates that
[1] the underlying claim is of arguable merit;
[2] that counsel’s action or inaction was not
grounded on any reasonable basis designed to
effectuate the appellant’s interest; and finally,
[3] that counsel’s action or inaction was prejudicial
to the client. For an action (or inaction) by counsel
to be considered prejudicial to the client, there must
be a reasonable probability that the outcome of the
proceedings would have been different. All three
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prongs of this test must be satisfied. If an appellant
fails to meet even one prong of the test, his
conviction will not be reversed on the basis of
ineffective assistance of counsel.
Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal
denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks
omitted).
In his first issue on appeal, appellant claims that trial counsel,
Attorney Howell, had a conflict of interest because he was employed as a
solicitor for Wayne County Children and Youth Services (“CYS”). Appellant
was investigated by CYS for the same allegations that led to the criminal
charges in this case. Appellant argues that it was a conflict of interest for
trial counsel to have simultaneously represented both CYS and appellant.
In Commonwealth v. Buehl, 510 Pa. 363, 508
A.2d 1167 (1986), we stated:
it is true that prejudice is presumed
when counsel is burdened by an actual
conflict of interest, this is only if the
defendant demonstrates that counsel
“actively represented conflicting
interests” and “that an actual conflict of
interest adversely affected his lawyer’s
performance.” Cuyler v. Sullivan, 446
U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d
333[ ](1980).
Commonwealth v. Hawkins, 787 A.2d 292, 297 (Pa. 2001).
Attorney Howell testified that he was employed by Wayne County but
had little involvement with CYS at that time. (Notes of testimony, 6/20/16
at 30.) He did not know why his name appeared on CYS’ letterhead. (Id.)
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Attorney Howell testified that he had no knowledge of CYS’ investigation into
the allegations against appellant. (Id. at 32-33.) The only information
Attorney Howell received from CYS was in his capacity as appellant’s
attorney. (Id.) The PCRA court found Attorney Howell’s testimony in this
regard to be credible. (PCRA court opinion, 7/8/16 at 4.) Therefore,
appellant failed to establish an actual conflict of interest and the issue lacks
arguable merit.
In his second issue on appeal, appellant argues that trial counsel was
ineffective for failing to file any pre-trial motions other than a routine motion
for a continuance. Appellant alleges that trial counsel failed to file a motion
for discovery, bill of particulars, or an omnibus pre-trial motion. However,
appellant offered no evidence to demonstrate that he requested any pre-trial
motions be filed on his behalf or how such filings would have affected the
outcome of his case. At the PCRA hearing, appellant complained that
Attorney Howell failed to get a copy of the CYS investigation report. (Notes
of testimony, 6/20/16 at 9-11.) However, the CYS report made an
“Indicated” finding of substantial evidence of child sexual abuse. (Id. at 18,
21; Exhibit D-3.) The CYS report was not exculpatory. Without
demonstrating how he was prejudiced by trial counsel’s alleged error in
failing to file pre-trial motions, the claim fails.
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Next, appellant maintains that trial counsel was ineffective for failing
to ensure that his waiver of his right to a jury trial was done so voluntarily,
knowingly, and intelligently.
In all cases, the defendant and the attorney for the
Commonwealth may waive a jury trial with approval
by a judge of the court in which the case is pending,
and elect to have the judge try the case without a
jury. The judge shall ascertain from the defendant
whether this is a knowing and intelligent waiver, and
such colloquy shall appear on the record. The waiver
shall be in writing, made a part of the record, and
signed by the defendant, the attorney for the
Commonwealth, the judge, and the defendant’s
attorney as a witness.
Pa.R.Crim.P. 620.
The essential elements of a jury waiver, though
important and necessary to an appreciation of the
right, are nevertheless simple to state and easy to
understand. “The[] essential ingredients, basic to
the concept of a jury trial, are the requirements that
the jury be chosen from members of the community
(a jury of one’s peers), that the verdict be
unanimous, and that the accused be allowed to
participate in the selection of the jury panel.”
Commonwealth v. Williams, 454 Pa. 368, 312
A.2d 597, 600 (1973); accord Commonwealth v.
Smith, 498 Pa. 661, 450 A.2d 973, 974 (1982).
Notwithstanding the Rule’s reference to a “colloquy
on the record,” the use of a written jury trial waiver
form has been deemed sufficient in the absence of
an oral jury trial waiver colloquy. Williams, 312
A.2d at 599-600 (rejecting request for per se
prophylactic rule requiring relief whenever Rule 1101
(predecessor to Rule 620) is violated; if other
evidence proves waiver was knowing and voluntary,
purpose of Rule is served); Smith, 450 A.2d at 974
(written waiver form “must be accorded prima facie
validity”).
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Commonwealth v. Mallory, 941 A.2d 686, 696-697 (Pa. 2008), cert.
denied, 555 U.S. 884 (2008). “[T]o prove trial counsel ineffective, each
appellant must show that his understanding of the written waiver was
constitutionally impaired by his lawyer’s deficient performance, as well as
proof that he would have elected a jury but for his lawyer’s performance.”
Id. at 702.
Instantly, appellant claims that trial counsel failed to fully explain his
rights regarding a jury trial. (Notes of testimony, 6/20/16 at 15-16.)
However, the record contains a written waiver of appellant’s right to a jury
trial, signed by appellant, Attorney Howell, the assistant district attorney,
and the trial judge. (Commonwealth’s exhibit 2.) Attorney Howell testified
that he reviewed the written waiver with appellant. (Notes of testimony,
6/20/16 at 34.) Attorney Howell testified that he and appellant thoroughly
discussed the issue and that appellant “was adamant and was definite,
100% on his decision, I want to have a non-jury trial.” (Id. at 31.) There is
nothing in the record to indicate that appellant’s understanding of the
written waiver form was impaired by trial counsel’s allegedly deficient
performance. Therefore, the claim lacks arguable merit.
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Finally, appellant argues that trial counsel was ineffective for failing to
call Father William Langan as a witness.4
To prove that counsel was ineffective for not
presenting certain witnesses, a defendant “must
establish the existence of and the availability of the
witnesses, counsel’s actual awareness, or duty to
know, of the witnesses, the willingness and ability of
the witnesses to cooperate and appear on the
defendant’s behalf and the necessity for the
proposed testimony in order to avoid prejudice.”
Commonwealth v. Whitney, 550 Pa. 618, 708
A.2d 471, 480 (1998) (citing Commonwealth v.
Wilson, 543 Pa. 429, 672 A.2d 293, 298 (1996)).
Commonwealth v. Spotz, 896 A.2d 1191, 1219 (Pa. 2006).
Appellant failed to establish that Father Langan was available and
willing to testify on his behalf. Attorney Howell testified at the PCRA hearing
that Father Langan, a prospective character witness, was reluctant to testify
and was unavailable. (Notes of testimony, 6/20/16 at 29.) Appellant
essentially conceded that Father Langan was unavailable to testify at trial,
testifying that Father Langan was subpoenaed but “[i]t was a little too late.”
(Id. at 12.) At any rate, appellant presented no evidence showing that the
absence of Father Langan’s testimony was so prejudicial as to deny him a
4
This issue was not raised in counsel’s brief on appeal but was raised in the
PCRA court and addressed by the PCRA court in its opinion and order
denying appellant’s petition. (PCRA court opinion, 7/8/16 at 4-5.) In
accordance with our scope of review in PCRA appeals where counsel has
petitioned to withdraw, we shall address it.
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fair trial or that the outcome would have been different. (PCRA court
opinion, 7/8/16 at 5.) This claim fails.5
Having conducted an independent review of the entire record, this
court is satisfied that the issues raised in appellant’s petition are meritless
and that the PCRA court did not err in denying appellant’s petition.
Accordingly, we will grant Attorney Campbell’s petition to withdraw and
affirm the order denying appellant’s PCRA petition.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
5
Father Langan was not called as a witness at the PCRA hearing, nor did
appellant comply with 42 Pa.C.S.A. § 9545(d)(1) (where a petitioner
requests an evidentiary hearing, the petition must include a signed
certification as to each intended witness and the petitioner must also provide
the witness’ name, address, date of birth, and the substance of the proposed
testimony). Therefore, it is unknown what Father Langan would have
testified to at trial.
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