Com. v. Thomas, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAQUISE JOSEPH THOMAS :
:
Appellant : No. 445 MDA 2020
Appeal from the PCRA Order Entered February 13, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000988-2017
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 22, 2021
Jaquise Joseph Thomas appeals from the February 13, 2020 order
dismissing his petition for relief under the Post-Conviction Relief Act (“PCRA”).
We affirm.
The factual and procedural history of this case was previously well-
summarized by this Court in an unpublished memorandum adjudicating
Appellant’s direct appeal. See Commonwealth v. Thomas, 201 A.3d 873(Pa.Super. 2018) (unpublished memorandum at 1-3). In pertinent part,
Appellant was arrested on February 6, 2017, at the Howard Johnson Motel
located on Eisenhower Boulevard in Harrisburg, Pennsylvania. On that night,
members of the Swatara Township Police Department investigated the smell
of burnt marijuana emanating from a hotel room occupied by Appellant and a
woman named Dnasia Peterson. Id. at 1-2. After Appellant gave consent for
the officers to search the location, they discovered a “marijuana blunt,” a
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digital scale, and approximately one hundred plastic baggies. Thereafter,
officers obtained a search warrant. During the investigation, Appellant
provided a false name and admitted ownership of several bags of heroin that
were eventually recovered. Also recovered from the hotel room were a “straw
with heroin residue” and “a candy bag that contained marijuana.” Id. at 2.
On December 8, 2017, a jury convicted Appellant of possession with
intent to distribute (“PWID”), possession of a small amount of marijuana,
possession of drug paraphernalia, conspiracy, and false identification to law
enforcement. On January 11, 2018, the trial court sentenced Appellant to an
aggregate term of thirty to seventy-two months imprisonment followed by one
year of probation. Appellant filed a timely direct appeal alleging that the trial
court had erroneously ruled on a suppression issue at trial. Ultimately, this
Court affirmed Appellant’s judgment of sentence. Id. at 10. Appellant filed a
petition for allowance of appeal to our Supreme Court, which was denied. See
Commonwealth v. Thomas, 206 A.3d 1028 (Pa. 2019) (per curiam order).
Appellant timely filed the above-captioned pro se PCRA petition.
Counsel was appointed to represent Appellant. On December 23, 2019, PCRA
counsel filed a “no merit” letter along with a petition to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Specifically, PCRA
counsel addressed the claims raised in Appellant’s pro se PCRA petition and
determined that they were meritless, and also stated that her independent
review of Appellant’s case had not uncovered any other potentially meritorious
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claims for relief. Attached to PCRA counsel’s petition was a copy of a
December 20, 2019 letter apprising Appellant of PCRA counsel’s intent to
withdraw, providing him with a copy of her petition to withdraw, and advising
him of his right to retain private counsel, proceed pro se, and to file a
supplemental brief in the PCRA court.
On December 31, 2019, the PCRA court filed a memorandum order that
granted PCRA counsel’s petition to withdraw. The PCRA court also stated that
it had undertaken an independent review of Appellant’s case, and agreed that
Appellant was not entitled to post-conviction relief. See Memorandum Order,
12/31/19, at 2. Contemporaneously, the PCRA court entered notice of its
intent to dismiss Appellant’s petition within pursuant to Pa.R.Crim.P. 907.
Appellant filed timely pro se objections to the PCRA court’s Rule 907
notice, requesting the appointment of substitute counsel and seeking leave to
amend his pro se PCRA petition to include “numerous claims of ineffective
assistance of trial counsel” that were allegedly overlooked by PCRA counsel.
Appellant’s Objections to 907 Notice, 1/24/20, at ¶ 5, 9. Appellant offered no
description or discussion of these allegedly overlooked claims. In relevant
part, Appellant did not challenge PCRA counsel’s withdrawal, aside from
asserting that certain undisclosed meritorious issues remained. After
considering these objections, the PCRA court dismissed Appellant’s petition.
Appellant filed a timely pro se notice of appeal. Both Appellant and the
PCRA court have complied with their obligations under Pa.R.A.P. 1925.
Appellant has raised the following issues for our consideration:
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1. Whether PCRA counsel violated Appellant’s 6th Amendment
right to counsel and Appellant’s 14th Amendment right to due
process during the PCRA proceedings for the following:
a. Counsel failed to investigate the history and procedure
employed by pre-trial and trial counsel in light of Appellant’s
clearly defective PCRA petition.
b. Counsel failed [to] challenge the Commonwealth and
protect [Appellant’s] interests when counsel failed to amend
the defective PCRA petition to address Officer [Patrick]
Walsh’s testimony and evidence at preliminary and
suppression hearings,[1] including failure to move for
discovery (photos and video evidence).
2. PCRA court abused discretion when it allowed PCRA counsel to
withdraw.
Appellant’s brief at 3. In reviewing these issues, we bear the following legal
principles in mind:
Our standard of review in a PCRA appeal requires us to determine
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. Commonwealth v. Mason, 130 A.3d 601, 617 (2015).
The scope of our review is limited to the findings of the PCRA court
and the evidence of record, which we view in the light most
favorable to the party who prevailed before that court.
Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011). . . .
The PCRA court’s factual findings and credibility determinations,
when supported by the record, are binding upon this Court.
[Mason, supra at 617]. However, we review the PCRA court’s
legal conclusions de novo. Id.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020).
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1 Officer Patrick Walsh was the officer that detected the odor of burnt
marijuana emanating from Appellant’s hotel room and obtained Appellant’s
consent to search the hotel room.
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Appellant’s claims for relief have shifted significantly during the course
of these proceedings. In his pro se PCRA petition, Appellant checked every
available box on the submission form and averred claims concerning
“ineffective assistance of counsel, police misconduct, and actual innocence.”
See Appellant’s Pro Se PCRA Petition, 11/19/19, at 3-4. Following the entry
of Rule 907 notice by the PCRA court, Appellant alleged that PCRA counsel
was ineffective for failing to raise ineffective assistance of counsel claims
against trial counsel: “PCRA counsel failed to investigate, address and perfect
any claims . . . . It is clear that [trial] counsel at the suppression hearing was
ineffective[.]” Appellant’s brief at 4-5.
Throughout, Appellant declined to provide any details or concrete
assertions of trial counsel’s alleged ineffectiveness. Indeed, Appellant only
began to delineate somewhat specific claims in his Rule 1925(b) statement,
in which he alleged, inter alia, that “PCRA counsel was ineffective for not
presenting the proof that appellant never gave consent and Officer Walsh lied
to the court about his actions at the hotel.” See Rule 1925(b) Statement,
3/31/20, at ¶ 5. Under the auspices of ineffectiveness, Appellant’s brief
largely re-litigates suppression issues that were previously addressed at
Appellant’s trial and on direct appeal. See Appellant’s brief at 5-6.
As structured, Appellant’s claims for relief are essentially layered claims
of ineffective assistance of counsel, i.e., that PCRA counsel was ineffective for
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failing to allege and establish trial counsel’s ineffectiveness. This Court has
previously discussed such claims, as follows:
To plead and prove ineffective assistance of counsel a petitioner
must establish: (1) that the underlying issue has arguable merit;
(2) counsel's actions lacked an objective reasonable basis; and
(3) actual prejudice resulted from counsel's act or failure to act.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (2011). Where
the defendant asserts a layered ineffectiveness claim he must
properly argue each prong of the three-prong ineffectiveness test
for each separate attorney. Id. at 1128.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-90 (Pa.Super. 2012).
Instantly, we discern that Appellant is asserting that trial counsel failed
to discover evidence that would have changed the outcome of the suppression
hearing in Appellant’s case. See Appellant’s brief at 5. According to Appellant,
PCRA counsel was concomitantly ineffective for failing to raise this issue in an
amended PCRA petition. However, Appellant’s brief is woefully undeveloped
and does not recite or apply the legal standards attendant to claims of
ineffective assistance of counsel. Id. at 5-6. As noted above, he does not
discuss ineffectiveness but focuses exclusively upon irrelevant legal
arguments implicating the long-affirmed ruling of the suppression court.
As such, we conclude that Appellant has failed to adequately address
the ineffectiveness factors. See Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 780 (Pa.Super. 2015) (en banc) (“[O]n appeal, a petitioner must
adequately discuss all three factors of the [ineffectiveness] test, or the
appellate court will reject the claim.”). Therefore, his claim fails.
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Order affirmed.2
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/22/2021
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2 Appellant asserts in various filings that PCRA counsel did not conduct a
thorough enough review of his case. However, the certified record
independently confirms that PCRA counsel promptly requested transcripts of
all the relevant proceedings. PCRA counsel also averred that she had
corresponded with Appellant in her petition to withdraw and stated that
Appellant had not presented counsel with any new exculpatory evidence that
could have changed the outcome of his trial. See Petition to Withdraw,
12/23/19, at ¶¶ 15, 38. Appellant’s own filings confirm that he corresponded
with PCRA counsel. See Objections to 907 Notice, 11/24/20, at ¶ 7. Although
Appellant complains that these communications were insufficient, he declines
to explain how additional correspondence with PCRA counsel would have
produced meritorious issues or arguments.
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