Com. v. Garnett, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALEXANDER GARNETT :
:
Appellant : No. 884 EDA 2021
Appeal from the PCRA Order Entered April 1, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007981-2013
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 19, 2022
Alexander Garnett appeals pro se from the order dismissing his Post
Conviction Relief Act (“PCRA”)1 petition without a hearing. Garnett argues his
PCRA counsel and trial counsel provided ineffective assistance. We affirm.
Garnett was convicted by a jury of first-degree murder and possession
of a firearm prohibited. See 18 Pa.C.S.A. §§ 2502(a) and 6105(a)(1),
respectively. The trial court sentenced him to serve life imprisonment without
parole and a consecutive term of five to ten years. On direct appeal, this Court
affirmed the judgment of sentence. After being granted nunc pro tunc relief
through a PCRA petition, Garnett filed a petition for allowance of appeal to the
Supreme Court of Pennsylvania. The Supreme Court denied the petition on
March 22, 2018.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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Garnett filed the instant PCRA petition on March 20, 2019, raising claims
of trial counsel ineffectiveness, and the PCRA court appointed counsel. Counsel
filed an application to withdraw and a “no merit” letter.2 The court issued
notice to Garnett of its intent to dismiss the petition without a hearing and
permitted counsel to withdraw.3 After granting Garnett several extensions to
the period in which to file a response, and not receiving one before the
extensions expired, the court dismissed the petition. The court thereafter
received a pro se response from Garnett that he had mailed from prison, with
a certificate of service pre-dating the deadline. Garnett’s response reiterated
his issues and additionally contended that his PCRA counsel was ineffective
for withdrawing from representation. The court considered the response but
did not rescind its dismissal of Garnett’s petition. See Commonwealth v.
Bankhead, 217 A.3d 1245, 1246 n.2 (Pa.Super. 2019) (deeming date of filing
by prisoner as date on certificate of service pursuant to prisoner mailbox rule);
PCRA Court Opinion, filed May 5, 2021, at 3. Garnett timely appealed.
Garnett presents the following issues:
1.) Did the PCRA Court violate [Garnett]’s Constitutional Right to
Due Process of Law?
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2 See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)
(explaining requirements for withdraw from PCRA representation under
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc)).
3 See Pa.R.Crim.P. 907(1).
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2.) Did the PCRA Court abuse [its] discretion when it denied
[Garnett] an Evidentiary Hearing on issues of Ineffective
Assistance of Counsel and Restoration of his appellate rights?
3.) Did the PCRA Court deprive [Garnett] of his sole means of
obtaining collateral relief?
4.) Did appointed PCRA Counsel provide Effective Assistance?
Garnett’s Br. at 2 (suggested answers omitted). We reorganize Garnett’s
issues in the discussion below, for the sake of clarity.
“Our standard of review from the denial of post-conviction relief ‘is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.’” Commonwealth
v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019) (quoting Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011)).
Garnett’s issues center around allegations that his trial counsel provided
ineffective assistance and his PCRA counsel was ineffective for concluding the
allegations of trial counsel ineffectiveness lacked merit. Counsel is presumed
effective until a petitioner has proven otherwise. Id. at 519. A petitioner will
prevail on an ineffectiveness claim only where “(1) the underlying legal claim
is of arguable merit; (2) counsel’s action or inaction lacked any objectively
reasonable basis designed to effectuate his client’s interest; and (3) prejudice,
to the effect that there was a reasonable probability of a different outcome if
not for counsel’s error.” Id. (quoting Commonwealth v. Grove, 170 A.3d
1127, 1138 (Pa.Super. 2017)). A petitioner presenting a layered
ineffectiveness claim must additionally plead and prove that subsequent
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counsel was ineffective for failing to raise the ineffectiveness of the counsel
who preceded him. Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa.
2019). The PCRA court need only hold a hearing on the allegations where the
petitioner has raised genuine issues of material fact. Commonwealth v.
Ellis, 700 A.2d 948, 960 (Pa.Super. 1997).
Garnett argues his trial counsel was ineffective for two reasons. First,
Garnett claims his trial counsel was ineffective for permitting the prosecution
to ask the medical examiner a hypothetical question about bullet trajectory.
Garnett asserts the Commonwealth’s improper questioning was an attempt to
persuade the witness that the victim had turned his head towards the shooter,
so as to establish that Garnett was the shooter. See Garnett’s Br. at 7. Garnett
argues that although the PCRA court found this issue had previously been
litigated on direct appeal, Garnett is raising it for the first time as a matter of
trial counsel’s ineffectiveness, and doing so at the first opportunity, through
these post-conviction proceedings. Id. at 6-8, 11; see also PCRA Pet.,
3/20/19, at 8-12.
Garnett has failed to establish the questioning caused him prejudice,
which is necessary to prove a claim of ineffectiveness. See Ligon, 206 A.3d
at 519. His only mention of prejudice is an assertion at the end of his brief
that he “suffered a significant prejudice as a result of trial counsel’s deficient
performance coupled with prosecutorial misconduct which significantly
hindered [his] ability to present an adequate defense.” Garnett’s Br. at 10.
Bald allegations of prejudice are not sufficient to establish ineffective
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assistance of counsel claims. Commonwealth v. Paddy, 15 A.3d 431, 443
(Pa. 2011).
Moreover, on direct appeal, Garnett raised the claim that the trial court
should not have overruled defense counsel’s objection to the hypothetical
question. See Commonwealth v. Garnett, No. 572 EDA 2015, 2016 WL
2651595, at *11 (Pa.Super. 2016) (unpublished memorandum).4 Garnett’s
ineffectiveness claim therefore fails, because trial counsel cannot be found
ineffective for failing to object to the admission of evidence to which counsel
did, in fact, object. Likewise, his PCRA counsel was not ineffective for failing
to find trial counsel ineffective on this issue.
Second, Garnett argues his trial counsel was ineffective for “permitting
the Commonwealth to present evidence against him by stipulation.” Garnett’s
Br. at 9. Garnett complains that trial counsel did not advise him of the
stipulations in advance or ensure that the trial court conducted a colloquy of
his waiver of his confrontation rights. See id. at 9-10.
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4 The prosecutor asked, “Doctor, the injuries you described, if I’m an individual
and I’m the shooter, I’m holding a gun behind someone’s head and the victim’s
head is in front of me and it is slightly turned to the left, would I see a similar
result?” Garnett, 2016 WL 2651595, at *11. We concluded that even if the
ensuing testimony was improper – a question we did not reach – the error of
admitting it was harmless, as the witness’s answer to the question “was
insignificant in comparison to the evidence establishing [Garnett]’s guilt.” Id.
at *12.
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Garnett has failed to develop this claim, as he does not explain what
evidence was admitted by stipulation. See Pa.R.A.P. 2119(c).5 To the extent
the Commonwealth and PCRA court identify the contested evidence, Garnett’s
issue lacks merit. Defense counsel only stipulated to the authentication of
certain items of evidence – including fingerprint and DNA evidence, a business
record of Facebook, Inc., and recordings of phone calls made by Garnett while
in prison. Counsel did not stipulate that the evidence itself was credible or
entitled to any weight. Furthermore, the PCRA court reviewed the stipulations
and found no prejudice. The court explained that in each case, the
Commonwealth would have called witnesses to authenticate the evidence.
PCRA Ct. Op. at 4-5. We agree that Garnett has failed to plead prejudice, as
he does not contest the Commonwealth’s ability to prove the authenticity of
any of this evidence. In addition, although “[a] colloquy ensuring a knowing
and voluntary decision is required any time a defendant stipulates to evidence
that virtually assures his conviction, because such a stipulation is functionally
the same as a guilty plea,” see Commonwealth v. Eichinger, 108 A.3d 821,
832 (Pa. 2014), Garnett has not asserted that any of the evidence entered by
stipulation at his trial virtually assured his conviction.6
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5Garnett’s PCRA petition does not contain this information, either. See PCRA
Pet. at 4-8.
6 In his PCRA petition, Garnett argued, “The stipulations were sprinkled
throughout the trial which gave the appearance as if [Garnett] was conceding
points in the Commonwealth’s case, such permissive milieu was tantamount
to a guilty plea hearing without a colloquy.” See PCRA Pet. at 7-8. His claim
of a “permissive milieu” does not rise to the standard warranting relief.
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Finally, in conjunction with his ineffectiveness claims, Garnett argues
that he was deprived due process. Garnett’s Br. at 5, 8. However, he offers
no relevant authority, and does not explain how the PCRA proceedings
deprived him of notice or the opportunity to be heard, or otherwise offended
due process. See Commonwealth v. Parks, 768 A.2d 1168, 1172 (Pa.Super.
2001). We are not obligated to develop legal theories on his behalf, and
conclude no relief is due. Commonwealth v. Beshore, 916 A.2d 1128, 1140
(Pa.Super. 2007) (en banc). We therefore affirm the order of the PCRA court
denying the petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2022
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