Com. v. Waring, M.

J-S40039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MACEO EMERSON WARING :
:
Appellant : No. 1386 EDA 2019
Appeal from the PCRA Order Entered April 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000373-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MACEO EMERSON WARING :
:
Appellant : No. 1387 EDA 2019
Appeal from the PCRA Order Entered April 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000379-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MACEO EMERSON WARING :
:
Appellant : No. 1388 EDA 2019
Appeal from the PCRA Order Entered April 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000380-2013
J-S40039-20
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 6, 2020
Appellant, Maceo Emerson Waring, appeals from orders of the Court of
Common Pleas of Philadelphia County (trial court) in three criminal cases
dismissing his Post Conviction Relief Act (PCRA)1 petitions without a hearing.
After careful review, we affirm.
These cases arose from the fatal shooting of Naeem Giles (Victim) on
September 10, 2012 in Philadelphia and Appellant’s struggle with two police
officers who arrested him for that crime on September 28, 2012. On
December 16, 2014, Appellant was convicted by a jury of first-degree murder,
carrying a firearm without a license, possession of an instrument of crime, and
two counts of aggravated assault on a police officer.
At Appellant’s trial, three eyewitnesses to the shooting, two of whom
knew Appellant, identified Appellant as the person who shot Victim. James
Burton, who knew Appellant since middle school, testified that he and
Appellant were together near the corner where the shooting occurred, that
Appellant said he wanted to get his gun “because I don't know these guys”
who were at the corner, and that Appellant got a .45 caliber Glock from the
house they were visiting. N.T., Trial, 12/9/14, at 63-64, 69-81. Burton
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
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testified that after Appellant got the gun, he and Appellant were down at the
corner where Victim and several other people were standing, that they
exchanged words with Victim and another person who was with Victim, and
that Burton and Victim were going to fight. Id. at 86-99, 132-41. Burton
testified that Appellant then hit Victim in the head with his gun and shot Victim
twice, and that after Victim fell, Appellant walked up and stood over Victim
and shot Victim several more times from close range. Id. at 99-107, 145.
Burton also testified that after the shooting, Appellant left the gun with Allen
Young at the house they had visited. Id. at 108-10, 147.
The half-sister of three girls who lived in that house, who knew both
Burton and Appellant and was present when the shooting occurred, testified
that Burton and Appellant were arguing with Victim, that she saw Burton hit
Victim in the back of the head, and that she saw Appellant shoot Victim three
times. N.T., Trial, 12/10/14, at 88-100, 122. A third witness, who was at the
scene but did not know Appellant well, also identified Appellant as the shooter.
Id. at 35-43, 46-54. In addition, the Commonwealth introduced evidence
that the bullets found at the scene of the shooting and in Victim’s body and
cartridge casings found at the scene were fired from the .45 caliber Glock that
Allen Young turned over to the police on September 14, 2012. N.T., Trial,
12/11/14, at 17-29, 61-62.
With respect to the charges of aggravated assault, one of the two police
officers who arrested Appellant testified that on September 28, 2012, they
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pulled Appellant’s car over for a traffic violation and learned that there was an
outstanding warrant for his arrest for homicide. N.T., 12/11/14, at 76-83.
The officer testified that when they tried to put handcuffs on Appellant,
Appellant struggled, tackled the other officer, and tried to grab the officers’
guns. Id. at 86-90. The recording of police officer’s radio call for assistance
was also played at trial. Id. at 95-96.
Following the jury’s verdict, Appellant was sentenced on December 16,
2014 to life in prison for the murder conviction, consecutive terms of ten to
twenty years for each of the aggravated assault convictions, and concurrent
terms of imprisonment of three and one-half to seven years for carrying a
firearm without a license and two and one-half to five years for possession of
an instrument of crime. On October 18, 2016, this Court affirmed Appellant’s
judgment of sentence. Commonwealth v. Waring, 159 A.3d 45 (Pa. Super.
2016) (unpublished memorandum). Appellant did not file a petition for
allowance of appeal to the Pennsylvania Supreme Court.
On June 27, 2017, Appellant filed timely pro se PCRA petitions in all
three cases and counsel for Appellant subsequently filed amended PCRA
petitions in each case. On March 11, 2019, the trial court issued notices
pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s PCRA petitions
without a hearing on the ground that the issues that the PCRA petitions raised
were without merit. Appellant filed responses to the trial court’s Rule 907
notice. On April 11, 2019, the trial court entered orders dismissing Appellant’s
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PCRA petitions without a hearing. Timely appeals were filed from all three
orders and these appeals were consolidated by this Court.2
Appellant presents the following issues for our review:
1. Did the PCRA court commit error of law in denying a new trial
or evidentiary hearing where direct appeal counsel was ineffective
for failing to raise a meritorious claim that the trial court abused
its discretion in denying trial counsel’s motion for mistrial due to
the Commonwealth’s introducing inadmissible prior crimes and bad
acts evidence against Appellant?
2. Did the PCRA court commit error of law in denying a new trial
or evidentiary hearing where direct appeal counsel was ineffective
for failing to raise a meritorious claim that the trial court abused
its discretion in denying both Appellant’s motion for appointment
of new counsel and trial counsel’s motion to withdraw as counsel
due to an actual breakdown in communication?
Appellant’s Brief at 4 (unnecessary capitalization omitted). Our review of the
trial court’s dismissal of Appellant’s PCRA petition is limited to determining
whether the court’s decision is supported by the record and free of legal error.
Commonwealth v. Staton, 120 A.3d 277, 283 (Pa. 2015); Commonwealth
v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
Both of Appellant’s PCRA claims here are claims of ineffective assistance
of counsel by his direct appeal counsel. To be entitled to relief under the PCRA
on a claim of ineffective assistance of counsel, the defendant must prove: (1)
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2Appellant was represented by counsel when the notices of appeal were filed,
but filed applications to proceed pro se in these appeals. Following a remand
and hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998), the trial court entered an order permitting Appellant to represent
himself in these appeals.
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that the underlying legal claim is of arguable merit; (2) that counsel’s action
or inaction had no reasonable basis designed to effectuate his client’s
interests; and (3) that he suffered prejudice as a result of counsel’s error.
Staton, 120 A.3d at 283-84; Commonwealth v. Miller, 212 A.3d 1114,
1126 (Pa. Super. 2019); Commonwealth v. Watley, 153 A.3d 1034, 1040
(Pa. Super. 2016). The defendant must satisfy all three prongs of this test to
obtain relief under the PCRA. Miller, 212 A.3d at 1126; Watley, 153 A.3d at
1040.
Both of Appellant’s issues fail because he cannot show that appellate
counsel’s actions caused him prejudice. Where ineffective assistance of
appellate counsel is claimed, the defendant must show that there is a
reasonable probability that the outcome of the appeal would have been
different but for counsel's deficient performance. Staton, 120 A.3d at 295;
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).
With respect to Appellant’s first issue, the only reference to prior crimes
or bad acts of which Appellant complains was in the following testimony of
James Burton:
Q. Do you know the defendant here, Maceo Waring?
A. Yes.
Q. Did you know him back in September of 2012?
A. Yes.
***
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Q. And had you been friends with him since middle school?
A. Yes.
Q. And when I say “friends,” how often would you two do things
together or hang out or stuff like that?
A. In our teenage years, we was pretty together -- we was pretty
much together, like, every day. As we got older, we kind of, like,
separated and come back to see each other here and there. It
was several times he was incarcerated so I wasn’t with him every
day.
N.T., Trial, 12/9/14, at 63-64. Appellant’s trial counsel immediately objected
and the trial court struck that testimony and instructed the jury to disregard
it. Id. at 64. Appellant’s trial counsel also moved for a mistrial and the trial
court, following argument at sidebar, denied the motion for a mistrial, but
again instructed the jury to disregard the stricken testimony. Id. at 65, 84-
86. Appellant’s counsel in his direct appeal did not raise the failure to grant a
mistrial as a ground for reversal.
Failure to grant a mistrial where a witness has mentioned the
defendant’s prior imprisonment or criminal history is not grounds for reversal
of a criminal conviction where the mention is a mere isolated, passing
reference that was neither intentionally elicited by the Commonwealth nor in
violation of a court order in the case, particularly where the jury was instructed
to disregard the statement. Commonwealth v. Parker, 957 A.2d 311, 319-
20 (Pa. Super. 2008); Commonwealth v. Kerrigan, 920 A.2d 190, 199-200
(Pa. Super. 2007); Commonwealth v. Guilford, 861 A.2d 365, 370-71 (Pa.
Super. 2004); Commonwealth v. Valerio, 712 A.2d 301, 303 (Pa. Super.
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1998). None of the cases cited by Appellant holds or suggests that failure to
grant a mistrial under those circumstances constitutes grounds for reversal.
In Commonwealth v. Clark, 309 A.2d 589 (Pa. 1973), the only decision cited
by Appellant that reversed a conviction based on evidence of prior
imprisonment or criminal record, the statement was admitted in evidence and
no cautionary instruction was given.
Here, Burton’s mention of Appellant’s incarceration was a single,
isolated statement and Appellant’s incarceration was never mentioned again
in the jury’s presence during the trial. The trial court struck the statement
and gave cautionary instructions that the jury was to disregard the statement.
N.T., Trial, 12/9/14, at 64, 86. There is no claim that the Commonwealth
intentionally brought out the fact that Appellant had previously been in prison
or that there was any pre-trial order barring mention of Appellant’s prior
imprisonment. Given these facts, litigation of the trial court’s denial of
Appellant’s motion for a mistrial on direct appeal would not have resulted in
reversal of Appellant’s convictions. Parker, 957 A.2d at 319-20; Kerrigan,
920 A.2d at 199-200; Guilford, 861 A.2d at 370-71; Valerio, 712 A.2d at
303. Appellate counsel’s failure to raise this issue therefore did not prejudice
Appellant and cannot constitute grounds for relief under the PCRA. Staton,
120 A.3d at 295; Blakeney, 108 A.3d at 750.
Appellant’s second issue likewise fails. Appellant’s request for new trial
counsel was made on the first day of trial. N.T., Motion Hearing, 12/9/14, at
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3-10. Appellant had already changed counsel twice before and trial counsel
asked to withdraw because Appellant’s mother made an accusation against
him. Docket Entries, 2/26/13, 1/24/14; N.T., Motion Hearing, 12/9/14, at 3-
7. The trial court, after a hearing that included testimony from Appellant’s
mother and trial counsel’s denial of her accusation, found that Appellant’s
mother’s accusation was false and denied the requests on the ground that a
change in counsel would delay trial. N.T., Motion Hearing, 12/9/14, at 3-14.
Trial then proceeded and trial counsel represented Appellant throughout the
trial. Appellant does not contend in this appeal that trial counsel’s
representation was deficient.
The right to appointed counsel does not include a right to counsel of the
defendant’s choosing. Commonwealth v. Philistin, 53 A.3d 1, 16 (Pa.
2012); Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998);
Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007). See also
Pa.R.Crim.P. Rule 122(C) (“A motion for change of counsel by a defendant for
whom counsel has been appointed shall not be granted except for substantial
reasons”). Whether to grant a defendant’s request for appointment of new
counsel is a matter committed to the trial court’s discretion. Floyd, 937 A.2d
at 497; Commonwealth v. Ingram, 591 A.2d 734, 738 (Pa. Super. 1991).
Where, as here, there is no dispute that trial counsel is fully prepared to
proceed with trial and is competent, appointment of new counsel is required
only where irreconcilable differences between the defendant and his counsel
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are shown. Floyd, 937 A.2d at 497; Ingram, 591 A.2d at 738. Neither a
strained relationship between the defendant and trial counsel nor a claim by
the defendant that he lacks confidence in or is dissatisfied with trial counsel
requires the trial court to grant a request for new counsel. Floyd, 937 A.2d
at 497-500; Ingram, 591 A.2d at 738; Commonwealth v. Knapp, 542 A.2d
546, 549 (Pa. Super. 1988). Denial of a request to change counsel where
there is no claim of irreconcilable differences is not grounds for reversing the
defendant’s conviction where the request is made just before trial and would
delay trial, even where the defendant is refusing to communicate with his
counsel and disagrees with his counsel’s legal advice. Commonwealth v.
Broitman, 217 A.3d 297, 299-301 (Pa. Super. 2019); Floyd, 937 A.2d at
496-500; Ingram, 591 A.2d at 738.
Here, the record showed at most only that Appellant and his mother
were dissatisfied with trial counsel and that Appellant chose to not cooperate
with trial counsel during jury selection. N.T., Motion Hearing, 12/9/14, at 5-
12. No irreconcilable conflict was shown or alleged; indeed, there is no claim
by Appellant in his brief of any disagreement between trial counsel and
Appellant concerning trial strategy. Moreover, the trial court found that the
accusation made against trial counsel was false and that changing counsel
would delay the trial. Id. at 7, 13-14. Because only dissatisfaction with trial
counsel and unilateral lack of cooperation by Appellant with his counsel were
shown, the trial court’s denial of the request for appointment of new counsel
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and denial of trial counsel’s request to withdraw were not a reversible abuse
of discretion. Broitman, 217 A.3d at 299-301; Floyd, 937 A.2d at 496-500;
Ingram, 591 A.2d at 738; Knapp, 542 A.2d at 549. Accordingly, raising this
issue would not have resulted in reversal of Appellant’s convictions and
Appellant cannot show that he was prejudiced by appellate counsel’s failure
to do so. Staton, 120 A.3d at 295; Blakeney, 108 A.3d at 750.3
For the foregoing reasons, we conclude that the trial court correctly held
that Appellant’s claims of ineffective assistance of counsel were without merit.
Accordingly, we affirm the trial court’s order dismissing Appellant’s PCRA
petition.
Order affirmed.
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3Appellant also argues in his brief that the cumulative effect of the two alleged
deficiencies entitles him to relief. Appellant did not raise cumulative error as
an issue in his PCRA petition or in his statement of issues and it is therefore
waived. Moreover, even if Appellant had preserved this argument, it is without
merit. As discussed above, neither of the issues that Appellant claims that
appellate counsel should have raised constituted grounds for reversal of his
convictions. Multiple meritless claims of ineffective assistance do not
collectively warrant relief that they are insufficient to support individually.
Staton, 120 A.3d at 295. The cases cited by Appellant are not to the contrary.
Rather, they involve the combined effect of evidence or errors on a jury’s
verdict, not unrelated insufficient appellate issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/06/2020
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