Com. v. Yarbrough, H.

J-A20014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRY D. YARBROUGH, JR. :
:
Appellant : No. 218 WDA 2019
Appeal from the PCRA Order Entered January 11, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002185-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRY D. YARBROUGH, JR. :
:
Appellant : No. 219 WDA 2019
Appeal from the PCRA Order Entered January 11, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002187-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 29, 2020
Harry D. Yarbrough, Jr. appeals pro se from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
On May 22, 2014, Amelia May Marsh was working as a loss prevention
officer in the Sears store at Mill Creek Mall in Erie County, when she noticed a
man concealing a pair of socks in his clothing. See N.T. Jury Trial, 1/14/16,
at 101-02. Ms. Marsh left the security office, where she had been watching
J-A20014-20
the store’s surveillance cameras, in order to observe him. Id. at 103. She
found the man in the hardware department and, from an obscured position,
watched as the man broke a screwdriver off from a multi-pack and concealed
it in his coat. Id. He then did the same with some bolt cutters before
proceeding to the store exit. Once the man exited the store with the concealed
items on his person, Ms. Marsh and her supervisor stopped the man and asked
him to come back with them to their office. When prompted, the man
identified himself as Tony Young and returned the stolen items. Since the
man was unable to verify his identity, Ms. Marsh called the Millcreek Police
Department. Id. at 112.
Patrolman Jeffrey Keller arrived and met with Ms. Marsh, who had the
individual and another male loss prevention officer in her office. Id. at 160.
When the man saw Patrolman Keller he “got very excitable,” apologized for
what he did, and told them that he would pay for the merchandise. Id. at
161. While Ms. Marsh recounted what had transpired, the suspect began to
move around nervously and started reaching into his pockets. Id. at 162. In
order to ensure that he did not have any weapons, Patrolman Keller initiated
a pat down. However, the suspect refused to comply with his commands and
began struggling with him. Patrolman Keller requested backup and placed the
man in handcuffs while he waited for an additional officer to arrive. Id. at
162-63.
Eventually, Patrolman Keller found a box cutter on the suspect’s person.
Despite a record search indicating that no such person existed, the suspect
-2-
J-A20014-20
continued to assert that his name was Tony Young. Accordingly, he was
placed under arrest and taken to the police station so that they could
fingerprint him. After officers ran the fingerprints, they determined that the
individual was Appellant. When confronted with this information, Appellant
laughed, smiled, and told the officers that they had done a “good job.” Id. at
167. Appellant was charged with retail theft, furnishing false identification to
law enforcement, and a summary count of disorderly conduct.
On June 28, 2014, Ms. Marsh, still working as a loss prevention officer
at Sears, received a picture of an individual who had been breaking into
unmanned cash registers in JC Penney and Bon Ton stores in the mall. Id. at
116. The suspect’s face was unclear, but she could identify his attire. After
reviewing the image, Ms. Marsh exited Sears and began walking through the
mall concourse to see if she could find anyone matching the clothing
description. Id. at 116. She walked approximately fifty feet before she saw
Appellant, whom she recognized from the previous incident. Appellant was
wearing the same shirt she saw in the aforementioned photograph. Id. at
117. Ms. Marsh contacted her supervisor, who reached out to the manager
at Bon Ton, Chris Castillo. The Millcreek Police were summoned and, while
the employees awaited their arrival, Ms. Marsh continued to follow Appellant.
Id.
Millcreek Patrolman Herbert Lucas responded and met with Mr. Castillo,
who informed Patrolman Lucas that they had been investigating a series of
cash register break-ins and that they believed they had found the person
-3-
J-A20014-20
responsible in the mall. Id. at 171-72. Mr. Castillo guided Patrolman Lucas
to Ms. Marsh, who pointed out Appellant. At the moment he was identified,
Appellant was inside of yet another store, where he had a piece of
merchandise in his hand and appeared to be fiddling with a security device.
Id. at 173.
Patrolman Lucas approached Appellant, grabbed his left arm, and said
“you need to come with me.” Id. at 174. Appellant turned to face him and a
short scuffle ensued that spilled out into the main mall concourse. During the
scuffle, Patrolman Lucas pulled Appellant’s shirt and backpack off of him. Id.
Something in Appellant’s hand cut Patrolman Lucas between two of his fingers,
forcing him to relinquish his grip and fall down. Appellant fled, with Ms. Marsh
in close pursuit, out into the parking lot. Id. at 182. Once outside, Appellant
turned his head towards Ms. Marsh and told her that “he would cut her.” Id.
at 124, 183. Appellant’s remark scared Ms. Marsh and she stopped chasing
him. Id. at 125. Appellant continued running and fled down an embankment
into a creek. Id. at 126. A search of Appellant’s backpack uncovered a box
cutter with removable utility blades. Id. at 180. As a result of this incident,
Appellant was arrested and charged with possession of instruments of crime
(“PIC”), terroristic threats, and resisting arrest.
The above-captioned cases were joined, and after a preliminary hearing,
the aforementioned charges were held for trial. On October 16, 2015,
Appellant’s appointed counsel, Stephen Lagner, Esquire, filed a motion to
withdraw based upon Appellant’s desire to represent himself. The trial court
-4-
J-A20014-20
subsequently held a hearing at which he informed Appellant that he was free
to hire private counsel, represent himself, or continue to be represented by
Attorney Lagner. Appellant chose to continue with Attorney Lagner and the
trial court denied the motion to withdraw.
Appellant filed a counseled omnibus pretrial motion challenging the
sufficiency of the evidence to establish a prima facie case of disorderly conduct
and requesting that the cases be tried separately. Prior to the hearing,
counsel filed a second motion to withdraw, contending Appellant sought once
again to represent himself. The trial court orally denied the motion,
concluding that it was a delay tactic by Appellant, and proceeded with the
hearing.1 In relevant part, Attorney Lagner objected to the admission of any
videos of the incidents without proper authentication, but his objection was
overruled. Id. at 8-11. On December 23, 2015, the trial court issued an
order denying Appellant’s omnibus pretrial motion and counsel’s second
request to withdraw.
On January 13, 2016, Appellant appeared for jury selection and again
stated that he wished to represent himself. The trial court conducted an oral
and written colloquy, before granting Appellant the right to proceed pro se
with Attorney Lagner as stand-by counsel. See N.T. Jury Trial, 1/13/16, at 7.
____________________________________________
1 These two cases were initially joined with a third case, CP-25-CR-0002189-
2015. At the hearing, the Commonwealth moved to dismiss that case,
concluding that the surveillance footage did not support the charges. See
N.T. Omnibus Pretrial Motion Hearing, 12/22/15, at 15. The trial court granted
the Commonwealth’s request and the charges were dismissed.
-5-
J-A20014-20
At the conclusion of jury selection for the day, Appellant informed the trial
court that he had not been able to watch any of the surveillance footage of
the incidents. Id. at 60. Attorney Lagner provided context, explaining that
while the defense had the DVDs, Appellant had not been able to view them
because the jail did not have the necessary computer program. Id. at 60-61.
Appellant also requested the dispatch records from Patrolman Lucas. Id. at
64. The Commonwealth responded that it did not believe any dispatch records
existed, or would be relevant if they did, but that it would investigate further.
Id. at 66. The Commonwealth agreed to play the DVDs for Appellant in the
district attorney’s office before jury selection resumed the next morning. Id.
at 62.
On January 14, 2016, after Appellant reviewed the DVDs and dispatch
records, the parties concluded the jury selection process. Next, Appellant
proceeded to orally raise a motion in limine, seeking to exclude from trial two
screwdrivers and a box cutter that were found in his backpack. See N.T. Jury
Trial, 1/14/16, at 66. After receiving argument from both sides, the trial court
granted Appellant’s motion regarding the screwdrivers, but allowed the
admission of the box cutter. Id. at 71.
At trial, Appellant did not testify, but he did attempt to admit the
dispatch tapes he had requested to review earlier. Appellant argued that the
dispatch tapes were needed to show that Patrolman Lucas did not initially tell
anyone that he was cut by Appellant. See N.T. Jury Trial 1/15/16, at 7-8.
Since the Commonwealth agreed that Patrolman Lucas did not mention his
-6-
J-A20014-20
injuries to dispatch, the trial court decided to issue an instruction regarding
the dispatch tapes instead of playing them for the jury. Id. at 8-13, 21.
Ultimately, the jury convicted Appellant of false identification, retail theft,
terroristic threats, and resisting arrest, but acquitted him of PIC. Afterwards,
the trial court convicted Appellant of summary disorderly conduct. Sentencing
was deferred so that a pre-sentence investigation report could be prepared.
In the meantime, Appellant filed pro se motions in which he, inter alia,
challenged the weight of the evidence, asked the court to compel Attorney
Lagner to provide him with the dispatch CD, and requested an extension of
time for the filing of additional post-trial motions.
On March 9, 2016, Appellant proceeded to sentencing where he received
an aggregate term of four to eight years of incarceration. The trial court also
considered Appellant’s post-trial motions, granting the motion to compel
counsel to turn over the dispatch CD, accepting Appellant’s motion challenging
the weight of the evidence as a post-sentence motion, and granting additional
time for Appellant to supplement the motion if he wished.
Thereafter, Appellant filed pro se post-sentence motions requesting,
inter alia, all of the transcripts from the case, which was granted. Appellant
also sought the appointment of standby counsel to help with his direct appeal
and petitioned for a new trial. Finally, he challenged the denial of his pretrial
motions, raised evidentiary issues from trial, alleged that discovery had not
been turned over to him, claimed that he had discovered new evidence about
a juror, and pled multiple instances of pre-trial counsel ineffectiveness.
-7-
J-A20014-20
On March 30, 2016, the trial court held a hearing on Appellant’s motion
for the appointment of standby counsel. At the hearing, Appellant requested
more time at the prison library and petitioned the trial court to direct stand-
by counsel to help him structure his appellate argument and make copies of
his filings. N.T. Hearing, 3/30/16, at 6-8. Following a discussion about the
different roles that appointed counsel and stand-by counsel play, Appellant
confirmed that he wanted to continue representing himself with stand-by
counsel. Id. a 16-18. After the hearing, the trial court issued an order
appointing stand-by counsel and reiterating that stand-by counsel would
respond to Appellant’s request for advice and consultation, but would not draft
correspondence or pleadings, conduct legal research, or perform clerical
duties for Appellant. See Order, 3/31/16.
On May 2, 2016, the trial court issued an order collectively denying the
remaining balance of Appellant’s post-trial motions. The court also notified
Appellant that he had thirty days to file a direct appeal.
Appellant filed a timely notice of appeal and complied with the trial
court’s order to file a concise statement, raising twenty-three separate issues.
On July 27, 2016, the trial court issued a Pa.R.A.P. 1925(a) opinion addressing
all of Appellant’s issues, which it grouped into three categories. After several
continuance requests, and a brief remand for a Grazier2 hearing, the appeal
was dismissed due to Appellant’s failure to file a brief. See N.T. Grazier
____________________________________________
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-8-
J-A20014-20
Hearing, 11/4/16; see also Trial Court Order, 11/18/16, at 1 (stating that
Appellant shall continue to represent himself on appeal as he has knowingly,
voluntarily, and intelligently waived his right to counsel); see also Superior
Court Order, 2/8/18, at 1 (dismissing appeal due to Appellant’s failure to file
an appellate brief).
On August 13, 2018, Appellant filed a timely pro se PCRA petition, in
which he raised the same issues that he had sought to litigate on direct appeal.
However, Appellant did not request the reinstatement of his direct appellate
rights. Instead, he sought a release from custody and discharge. The court
appointed William Hathaway, Esquire, who filed a supplemental PCRA petition.
Therein, counsel alleged that Appellant was denied the right to self-
representation and forced into accepting hybrid counsel, as well as a litany of
other claims that he conceded should have been asserted on direct appeal.
However, counsel explained that waiver should be overlooked because there
was confusion over whether Appellant was represented by counsel on direct
appeal. On December 24, 2018, the PCRA court issued notice of intent to
dismiss the PCRA petition without a hearing on the basis that Appellant’s
claims could have been presented on direct appeal, but were not. On January
11, 2019, the PCRA court dismissed the petition.
Attorney Hathaway filed a timely notice of appeal. The next day,
Appellant filed a motion to proceed pro se wherein he alleged that PCRA
counsel was ineffective when he did not include any citations in his
supplemental PCRA petition and did not respond to the PCRA court’s notice of
-9-
J-A20014-20
intent to dismiss. Appellant asked for everything to be “redone” with new
PCRA counsel, or for Appellant to be given the option to proceed pro se. See
Motion for Change of Appointed Counsel, 2/15/19. While Appellant’s motion
was pending, Attorney Hathaway filed a concise statement pursuant to
Pa.R.A.P. 1925(b), in which he reiterated the claims that he had raised in the
supplemental PCRA petition.
A Grazier hearing was scheduled, and rescheduled several times, after
the original PCRA judge retired. Once the case was reassigned, a Grazier
hearing was held. At the hearing, Appellant completed a right-to-counsel
colloquy and elected to proceed pro se with his PCRA appeal. A month later,
the PCRA court filed its Rule 1925(a) opinion upholding dismissal, relying on
the rationale previously articulated in the notice of intent to dismiss.
Accordingly, both Appellant and the PCRA court have complied with their
respective obligations under Pa.R.A.P. 1925.
Appellant presents the following issues, which we have reordered for
ease of disposition:
A. Did standby counsel undermine [Appellant’s] state and
federal constitutional rights to self[-]representation?
B. Was [Appellant] convicted of resisting arrest CC 5104
despite being actually innocent? And/or was the evidence
insufficient as a matter of law?
C. Did the trial court [err] by sending a box cutter to the jury
during deliberations after granting [Appellant’s] motion of
acquittal as to any charges emanating from possession of
said article?
- 10 -
J-A20014-20
D. Did the Commonwealth witnesses commit perjury?
E. [Were] the videos altered, fabricated and deleted
exculpatory evidence?
F. Was the evidence insufficient as a matter of law and factual
support the conviction of retail theft CC 3929(a)(1) and/or
was [Appellant] actually innocent?
G. Did the lower court [err] in not severing the charges of retail
theft, disorderly conduct and false identification to law
enforcement which came about as the result of an incident
that transpired thirty-six days earlier than the incident for
which he was arrested for in “theory only” and which gave
rise [to] this appeal?
H. Was the evidence legally insufficient to convict [Appellant]
of terroristic threats and/or was [Appellant] actually
innocent?
I. Did the Commonwealth commit a Brady error?
J. Was PCRA counsel ineffective?
Appellant’s brief at VIII-VIIII.
We begin with a discussion of the pertinent legal principles. Our “review
is limited to the findings of the PCRA court and the evidence of record,” and
we do not “disturb a PCRA court’s ruling if it is supported by evidence of record
and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Id.- 11 -
J-A20014-20
A petitioner is not entitled to PCRA relief on claims that have been
waived. Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa. 2009). It is
well-established that a claim 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 prior state post-conviction proceeding.” 42 Pa.C.S. § 9544(b). An appellant
cannot overcome waiver by alleging ineffective assistance of counsel during a
proceeding where he represented himself, because the law prohibits a
defendant who chooses to represent himself from alleging his own
ineffectiveness. See Commonwealth v. Williams, 196 A.3d 1021, 2029-30
(Pa. 2018); see also Commonwealth v. Bryant, 855 A.2d 726, 736-37 (Pa.
2004). Importantly, the fact that standby counsel was appointed to assist, at
trial or on appeal, does not alter this conclusion. See Fletcher, supra at
774.
The first nine of Appellant’s ten claims concern issues that Appellant
could have raised on direct appeal. Indeed, he raised them in his pro se post-
verdict motions and concise statement filed in connection with his direct
appeal. The fact that the issues were not reviewed by this Court resulted from
Appellant’s failure to file an appellate brief. Nonetheless, the claims are
waived pursuant to 42 Pa.C.S. § 9544(b). Furthermore, as detailed above,
Appellant elected to proceed pro se with stand-by counsel at trial and during
the appellate phase of the proceedings. Therefore, he cannot overcome the
- 12 -
J-A20014-20
waiver of his first nine claims by alleging his own, or stand-by counsel’s,
ineffectiveness.3
In Appellant’s remaining allegation, he contends that PCRA counsel was
ineffective when he failed to seek the reinstatement of Appellant’s direct
appeal rights nunc pro tunc. See Appellant’s brief at 1, 8. Appellant explains
that because the librarian at SCI Greene refused him access to the library, he
could not make copies of his brief. Accordingly, he was unable to file an
appellate brief. Id.
A review of the certified record reveals that Appellant has not preserved
this issue for review in the instant appeal. Claims of PCRA counsel
ineffectiveness cannot be raised for the first time on appeal. See
Commonwealth v. Vo, 235 A.3d 365, 370 (Pa.Super. 2020); see also
Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.Super. 2015) citing
Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa.Super. 2012) (“[A]bsent
recognition of a constitutional right to effective collateral review counsel,
claims of PCRA counsel ineffectiveness cannot be raised for the first time after
____________________________________________
3 In making this finding, we note that our Supreme Court has allowed
ineffective assistance claims in those situations where stand-by counsel has
taken over trying the case during the jury trial. See Commonwealth v.
Bryant, 855 A.2d 726, 737 (Pa. 2004) (deeming claims of ineffective
assistance of counsel waived as to the part of the trial when the defendant
was representing himself, but reviewing the merits of claims related to
counsel’s performance after the defendant requested that standby counsel
take over). However, this situation is not relevant here, since Appellant
represented himself for the entire trial and never requested that standby
counsel take over.
- 13 -
J-A20014-20
a notice of appeal has been taken from the underlying PCRA matter.”).
Instead, such claims are properly raised by filing a pro se response to the Rule
907 notice, by retaining private counsel while the PCRA petition is still
pending, or by raising them in a subsequent PCRA petition. See Vo, supra
at 369 (citing Commonwealth v. Jette, 23 A.3d 1032, 1044 n. 14 (Pa.
2011)).
Appellant had an affirmative duty to preserve his claims in the lower
court. If he sought to assert claims of ineffective assistance of PCRA counsel,
he should have requested to proceed pro se or hired private counsel before
the conclusion of the PCRA proceedings in the court below. Instead, Appellant
did nothing between the issuance of the Rule 907 notice and dismissal of his
petition. Specifically, Appellant alleged the ineffectiveness of PCRA counsel
and requested to proceed pro se after the PCRA court had dismissed his
petition and appointed counsel had already filed a notice of appeal. Since
Appellant raised the PCRA counsel ineffectiveness claims for the first time on
appeal, we may not consider them. See Ford, supra at 1201. Consequently,
Appellant’s only potential avenue for relief on these issues is through pursuit
of a new PCRA petition once he has finished litigating this one. See Vo, supra
at 369.
As Appellant has waived his claims, we affirm the PCRA court’s order
dismissing his petition.
- 14 -
J-A20014-20
Order affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2020
____________________________________________
4 During the pendency of this appeal, Appellant filed a motion seeking to
supplement the certified record with a DVD from one of the incidents and a
CD containing Patrolman Lucas’s dispatch calls. We granted the motion. On
October 29, 2020, Appellant filed a motion to compel the lower court to
forward the relevant CD and DVD after he was unable to send his copies, due
to a transfer from SCI Greene to SCI Somerset. Since we resolve Appellant’s
appeal on procedural grounds, we dismiss Appellant’s motion to compel as
moot.
- 15 -