Com. v. Bernard, L.

J-A21013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEONARD D. BERNARD :
:
Appellant : No. 894 EDA 2020
Appeal from the PCRA Order Entered February 21, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000120-2015
BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 27, 2020
Leonard D. Bernard appeals from the order, entered in the Court of
Common Pleas of Chester County, denying his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review,
we affirm in part, reverse in part, and remand.
This Court previously set forth the facts of this case as follows:
[The victim, 76-year-old Alice] Stackhouse[,] testified that due to
several chronic illnesses, she relied on in-home care services.
Brianna Mitchell, Bernard’s girlfriend (now wife), had provided in-
home care for Stackhouse in 2014. Stackhouse fired Mitchell in
November 2014, due to her belief that Mitchell had stolen
Stackhouse’s supply of pain medication.
On December 20, 2014, Stackhouse answered a knock on her
door. [Bernard1] was at the door, and he forced his way in to
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1During her testimony, Stackhouse identified Bernard as the man who
had robbed her. Commonwealth v. Bernard, 2286 EDA 2017, at 1
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Stackhouse’s apartment. [Bernard] ripped a necklace off of
Stackhouse while pushing her onto a couch.
When Stackhouse began screaming, he slapped her in the
face. He threatened to “cut” her if she didn’t stop screaming. He
proceeded to steal her wedding and engagement rings, as well as
her watch.
[Bernard escorted] Stackhouse into another room using her
walker. He ransacked the room, stealing more jewelry. He placed
a beach bag over Stackhouse’s head, and then bound her hands
together with a belt. [Bernard] continued to ransack her
apartment. Ultimately, he left the apartment with Stackhouse
tied up on the floor.
* * *
Detective Michael Buchmann testified [that] police immediately
suspected Mitchell and her significant other were involved with
this crime. Police obtained a search warrant for Bernard and
Mitchell’s home. Detective Jeffrey McCloskey testified that during
the search, police found several items clearly belonging to
Stackhouse.
Commonwealth v. Bernard, 2286 EDA 2017, at 2-3 (Pa. Super. filed
Oct. 1, 2018) (memorandum decision) (internal citations omitted).
Following a bench trial, the court convicted Bernard of robbery,
burglary, conspiracy, and other related offenses. He was sentenced to
33 to 60 years in prison. “Bernard exercised his right to represent
himself during trial and during the initial post-sentence proceedings. He
retained private counsel after filing several pro se appeals and post-
sentence motions. [In July 2017,] his direct appeal rights were
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(Pa. Super. filed Oct. 1, 2018). She admitted she had previously been
unable to identify him from a photographic array. See id.
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restored [nunc pro tunc] via a [PCRA] proceeding and agreement with
the Commonwealth.” Id. at 1, n.1; see also Notice of Intent to Dismiss
PCRA Petition Pursuant to Pa.R.Crim.P. 907, 1/13/20, at 2-4 (detailing
extensive procedural history).
On direct appeal, Bernard raised six claims of error, arguing that the
trial court: (1) improperly allowed Stackhouse to identify him in court; (2)
improperly admitted opinion testimony from a witness not qualified as an
expert; (3) improperly admitted hearsay testimony from the same witness;
(4) improperly admitted evidence subject to the spousal communications
privilege; (5) erroneously found the evidence at trial sufficient and credible
enough to support a guilty verdict; and (6) imposed an unreasonably
excessive sentence. Bernard, supra at 1. After addressing the merits of his
first, fourth,2 fifth, and sixth claims, and finding his second and third claims
waived, this Court concluded that Bernard was entitled to no relief, and
affirmed his judgment of sentence. On April 8, 2019, the Supreme Court of
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2 Because Bernard failed to object to the Commonwealth’s pre-trial motion to
present Mitchell’s testimony of her observations of Bernard leading up to the
robbery, Bernard failed to preserve his challenge to the admission of this
testimony. He did, however, preserve his challenge to trial court’s application
of the marital communication privilege involving letters Bernard wrote to
Mitchell while both were in jail, which this Court rejected. See Bernard,
supra, at 2-4.
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Pennsylvania denied Bernard’s petition for allowance of appeal.
Commonwealth v. Bernard, 206 A.3d 488 (Pa. 2019) (Table).
Bernard timely filed his first PCRA petition on July 22, 2019, raising
essentially the same issues he raised on direct appeal.3 On August 15, 2019,
C. Curtis Norcini, Esquire, was appointed to represent Bernard. On December
12, 2019, Attorney Norcini filed a “no merit” letter and a petition to withdraw,
pursuant to the standards set forth in Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
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Those issues were:
1. [Did the court err by] improperly admitting the in-court
identification of [Bernard] by the complaining witness without
first addressing [Bernard’s p]etition for a line-up filed prior to
trial but not addressed until trial commenced?
2. [Did the court err by] improperly admitting opinion testimony
from a witness who was not first qualified as an expert?
3. [Did the court err by] improperly admitting hearsay testimony
from the same witness?
4. [Did the court err by] improperly admitting evidence of marital
communications between [Bernard] and his wife on [c]ourt
records that should have been protected by the spousal/marital
communications privilege?
5. Whether the [v]erdict was against the weight and/or sufficiency
of the evidence?
6. [Did the court err or abuse its discretion by] imposing an
unreasonably excessive sentence?
PCRA Petition, 7/22/19, at 3. None of these are cognizable claims under the
PCRA. See 42 Pa.C.S.A. § 9543(2)(i-viii) (eligibility for relief).
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1988). On December 23, 2019, Bernard filed a response to the no-merit
letter. On January 13, 2020, after conducting an independent review, the trial
court filed its Pa.R.Crim.P. 907 notice of intent to dismiss Bernard’s petition,
which gave Bernard twenty days to respond. Bernard filed a response on
February 3, 2020, in which “[Bernard] acknowledge[d] that his PCRA
petition[,] as presently constructed[,] does not entitle him to relief. See
Response to Notice of Intent to Dismiss, 2/3/20, at 1. However, [Bernard
requested] leave of [c]ourt to amend his [p]etition to add a new claim under
Alleyne v. U.S., 570 U.S. 99 (2013).” Order, 2/21/20, at 2, n.4. The trial
court denied this request as “untimely,” noting that “it was made
approximately eight (8) months after the filing of [Bernard’s] July 22, 2019
PCRA petition and clearly does not relate back to any of the original PCRA
claims for relief. [Bernard attempted] to raise a completely new claim . . .
after the Commonwealth filed its Answer to [his] PCRA petition and this [c]ourt
issued its [] Rule 907(1) [n]otice.” Id. The court stated further that Bernard’s
challenge under Alleyne, if it were included in the amended petition, “would
also be untimely.” Order, 2/21/20, at 2, n.4.
On February 21, 2020, the trial court dismissed Bernard’s PCRA petition
and permitted counsel to withdraw. On March 11, 2020, Bernard appealed
that order. Both he and the trial court complied with Pa.R.A.P. 1925. Bernard
raises the following issue for our review:
[Whether Bernard’s] sentence imposed under 42 Pa.C.S.A. § 9714
pursuant to Alleyne,[ supra;] [Commonwealth v.] Hopkins[,
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117 A.3d 242 (Pa. 2015);] and [Commonwealth v.] Wolfe[, 140
A.3d 651 (Pa. 2016)] is unconstitutional because it directs a judge
rather than a jury to determine whether the “instant offense”
was committed by violence to be a crime of violence under
[section] 9714(d) and the Pennsylvania Supreme Court decision
in [Commonwealth v.] Samuel[, 961 A.2d 57 (Pa. 2008)] is no
longer good law[?]”
Brief of Appellant, at 8 (emphasis added).
Our standard of review is well-settled:
On appeal from the denial of PCRA relief, [we] determine whether
the ruling of the PCRA court is supported by the record and free
of legal error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions. To be eligible for relief under the PCRA, a defendant
must plead and prove that his conviction and/or sentence resulted
from one of the circumstances delineated by the PCRA. See 42
Pa.C.S.[A.] § 9543(a)(2) (outlining the requirements to be eligible
for PCRA relief).
Among those requirements are that the issue raised be
neither previously litigated nor waived. Id. at 9543(a)(3). An
issue is previously litigated if the highest appellate court in which
the petitioner could have had review as a matter of right has ruled
on the merits of the issue[. Id. at] § 9544(a)(2). An issue is
waived if the petitioner could have raised it but failed to do so
before trial, at trial, on appeal, or in a prior state postconviction
proceeding. Id. § 9544(b).
Commonwealth v. Williams, 196 A.3d 1021, 1026 (Pa. Super. 2018)
(quotations, ellipses, and some citations omitted).
Primarily, we note the six claims of error identified in Bernard’s July 22,
2019 PCRA petition were each previously litigated and rejected by this Court
on direct appeal. See Commonwealth v. Bernard, 2286 EDA 2017, at 1-3
(Pa. Super. filed Oct. 1, 2018); see also 42 Pa.C.S.A. § 9543(a)(3). Thus,
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the PCRA court properly determined that none of them entitles Bernard to
relief.
The PCRA court submits that Bernard’s Alleyne challenge, presented in
his Rule 1925(b) statement, is unreviewable on appeal because it was not first
presented to the PCRA court. See Order, 2/21/20, at 2, n.4 (“[Bernard] is
now attempting to raise a completely new claim. . . . Accordingly, [he] must
file a new PCRA petition to raise this claim.”); see also Order, 4/2/20, at 2
(“[Bernard] impermissibly attempts to raise a confusing and convoluted
Alleyne challenge.[4] This argument can provide no successful basis for relief
on appeal as it was not properly preserved for appeal. Rather, [Bernard] has
failed to first raise the claim in the PCRA [c]ourt.”), citing Pa.R.A.P. 302(a)
(issues not raised in lower court are waived and cannot be raised for first time
on appeal).
Because Bernard sought, unsuccessfully, to amend his PCRA petition to
include this Alleyne challenge before the court dismissed his petition, we turn
to whether his request for leave to amend the petition was properly denied.
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4 The Commonwealth appears to have misinterpreted Bernard’s argument on
appeal. See Brief of Appellee, at 15 (“[Bernard] argues that if the legislature
determines that the prior conviction must be a crime of violence[,] the jury
must make that determination. [He] is incorrect.”) (emphasis added); cf.
Reply Brief of Appellant, at 1 (“The Commonwealth is changing [Bernard]’s
argument as an attack on the prior conviction. NOTE: [Bernard]’s argument
is an attack on [the judge’s determination that] the instant crime (the one
Appellant was on trial for) [was a crime of violence. Bernard] is not arguing
anything about the prior conviction.”) (emphasis added and in original).
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Rule 905(A) of the Pennsylvania Rules of Appellate Procedure provides
that: “The judge may grant leave to amend or withdraw a petition for post-
conviction collateral relief at any time. Amendment shall be freely allowed
to achieve substantial justice.” Pa.R.A.P. 905(A) (emphasis added); but
see Commonwealth v. Sepulveda, 144 A.3d 1270, 1280 (Pa. 2016)
(“Rule 905(A) requires that the PCRA petition in question is still pending
before the PCRA court at the time the request for amendment is made”). See
also Commonwealth v. Williams, 828 A.2d 981, 988 (Pa. 2003) (“The
statutory word ‘may’ as contrasted with ‘shall’ signals a discretionary rather
than a mandatory act.”).
Pursuant to Rule 905, PCRA courts are vested with discretion to permit
the amendment of a pending, timely-filed post-conviction petition. This
discretion “must be exercised consistently with the command
of Rule 905(A) that amendment should be freely allowed to achieve
substantial justice.” Commonwealth v. Crispell, 193 A.3d 919 (Pa. 2018),
citing Commonwealth v. Flanagan, 854 A.2d 489 (Pa. 2004). Adherence
to this liberal standard for amendment is essential because, in light of the
PCRA’s time limitations, criminal defendants may have just one opportunity to
pursue collateral relief in state court. See Crispell, supra; Flanagan,
supra.
In Crispell, the appellant sought leave to amend his PCRA petition ten
years after its original filing, while it was still pending before the PCRA court,
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to add a claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), premised
upon evidence disclosed by the Commonwealth during discovery. In denying
leave to amend, the PCRA court erroneously concluded that it lacked
jurisdiction to consider the amendment based on the PCRA’s time bar.
Because the PCRA court erred as a matter of law, our Supreme Court vacated
the order denying petitioner relief “to the extent that it denied [appellant]
leave to amend to add the new Brady claim,” but affirmed the denial of PCRA
relief in all other respects. Crispell, supra, at 924. The Court noted that:
The PCRA court in this case exercised no discretion in
addressing Crispell’s motion to amend. Rather, the court
premised its ruling upon its mistaken belief that it lacked
jurisdiction to address the claim in any event. The only option
available to this Court, at this juncture, is to remand this
case back to the PCRA court, so that the court may consider
Crispell’s motion for leave to amend in accord with the liberal
standard of Rule 905(A).[5]
Id. at 930 (emphasis added).
Here, we are constrained to reach the same result where the PCRA court
erroneously denied Bernard’s application for leave to amend his timely PCRA
petition “as untimely.” Order, 2/21/20, at 2; see also Flanagan, supra
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5 Before the PCRA court, Crispell asserted that: (1) the court should grant
leave to amend because the new Brady claim was premised upon facts that
he first learned from the Commonwealth’s production of documents during
PCRA discovery; (2) the Commonwealth was not prejudiced by amendment,
and could not claim surprise at the addition of a claim derived from its own
production of documents; and (3) permitting amendment would achieve
substantial justice. The Supreme Court ordered the PCRA court on remand
“to evaluate these uncontested assertions pursuant to the liberal amendment
standard of Rule 905(A).” Crispell, supra at 930.
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(holding amended petitions are not independently subject to PCRA’s time bar);
Pa.R.A.P. 905(A) (judge may grant leave to amend or withdraw at any time)
(emphasis added). On remand, the PCRA court is to assess Bernard’s
application for leave to amend his timely PCRA petition to raise his challenge
under Alleyne pursuant to the liberal amendment standard of Rule 905(A).
Order affirmed in part, reversed in part. Case remanded for further
proceedings consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2020
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