Com. v. Reese, B.

J. S37045/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRUCE REESE, : No. 2953 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered September 26, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0013539-2011
BEFORE: SHOGAN, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 1, 2020
Bruce Reese appeals the September 26, 2019 order, entered in the
Court of Common Pleas of Philadelphia County, dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review, we
affirm.
A previous panel of this court set forth the facts of this case on direct
appeal and we need not repeat them here. See Commonwealth v. Reese,
No. 52 EDA 2013, unpublished memorandum at 1-3 (Pa.Super. filed June 23,
2015) (en banc). The PCRA court set forth the following procedural history:
On October 5, 2012, at the conclusion of his jury trial,
[appellant], represented by Jonathan Altschuler, Esq.,
was found guilty on four counts of robbery, one count
of conspiracy and one count of possession of an
1 See 42 Pa.C.S.A. §§ 9541-9546.
J. S37045/20
instrument of a crime.[2] On November 20, 2012,
[appellant], again represented by Mr. Altschuler, was
sentenced to an aggregate period of confinement in a
state correctional institution of 15 to 30 years. On
December 10, 2012, [appellant], now represented by
Jonathan Frisby, Esq., timely filed a direct appeal to
the Superior Court of Pennsylvania, at 52 EDA 2013.
On August 9, 2014, a divided three judge panel issued
an order reversing [appellant]’s judgment of
sentence. However, on October 3, 2014, [the]
Superior Court withdrew that opinion and, on June 23,
2015, [the] Superior Court issued an en banc order
affirming [appellant]’s convictions. However, [the]
Superior Court, sua moto, vacated [appellant]’s
sentence and remanded the matter back for
resentencing, finding [appellant]’s sentence to be
illegal, pursuant to Alleyne v. United States, [570]
U.S. [99], 133 S.Ct. 2151 (2013), and its progeny[.]
On April 25, 2016, the [trial] court, after a hearing,
resentenced [appellant], now represented by David M.
Simon, Esq., and re-imposed his original sentence.
On May 23, 2016, [appellant] timely filed a direct
appeal to the Superior Court at 1661 EDA 2016.
Subsequently, on October 4, 2016, [the] Superior
Court granted [appellant]’s motion to withdraw this
appeal.
On September 5, 2017, [appellant] filed the subject
timely pro se PCRA petition pursuant to 42 Pa.C.S.A.
§ 9541, et seq., seeking a new trial, alleging
ineffectiveness of counsel. On September 27, 2017,
Susan V. Buck, Esq., was appointed as counsel to
represent [appellant] for the purposes of his PCRA
petition. On July 9, 2018, Ms. Buck filed a counseled
amended PCRA petition (first amended petition). On
July 10, 2018, the [PCRA] court permitted Ms. Buck
to withdraw her appearance, and, on July 12, 2018,
appointed Peter A. Levin, Esq., to represent
[appellant] for the purposes of his PCRA petition. On
October 15, 2018, Mr. Levin filed a second counseled
amended PCRA petition (second amended petition),
2 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, and 907(a), respectively.
-2-
J. S37045/20
averring appellate counsel, Mr. Frisby, was ineffective
for failing to file a petition for allocator [sic] with the
Supreme Court of Pennsylvania.
[Hearings on appellant’s PCRA petition were held on
June 13 and September 26, 2019.] On September 26,
2019, the [PCRA] court, after [the] hearing and a
careful review of the record, issued an order
dismissing [appellant]’s PCRA petition as being
without merit. On October 10, 2019, [appellant]
timely filed the instant direct appeal to the Superior
Court of Pennsylvania.
On October 18, 2019, [the PCRA] court filed and
served on [appellant] an order[,] pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, directing [appellant] to file and serve a
statement of errors complained of on appeal, within
21 days of the [PCRA] court’s order. On November 8,
2019, [appellant] timely filed his “Statement of
Matters Complained of on Appeal . . .”
PCRA court Rule 1925(a) opinion, 1/8/20 at 1-3 (footnote and extraneous
capitalization omitted). Thereafter, the PCRA court filed its Rule 1925(a)
opinion.
On appeal, appellant raises the following issues:
1. Whether appellate counsel was ineffective for
not filing an [a]llocatur [petition] to the
Pennsylvania Supreme Court?
2. Whether the PCRA court was in error in not
allowing [a]ppellant to file a supplemental
PCRA?
Appellant’s brief at 8.
In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing, viewed
-3-
J. S37045/20
in the light most favorable to the prevailing party.” Commonwealth v. Sam,
952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most
PCRA appeals involve questions of fact and law, we employ a mixed standard
of review. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). We
defer to the PCRA court’s factual findings and credibility determinations
supported by the record. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa.Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014). In
contrast, where the appellant “raises questions of law, our standard of review
is de novo and our scope of review is plenary.” Commonwealth v. Rykard,
55 A.3d 1177, 1183 (Pa.Super. 2012), appeal denied, 64 A.3d 631 (Pa.
2013).
Appellant claims his appellate counsel was ineffective for failing to file a
petition for allocatur to our supreme court following the June 23, 2015 ruling
of this court. (Appellant’s brief at 8, 14-21.)
In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective. To
overcome this presumption, [a]ppellant must
establish three factors. First, that the underlying
claim has arguable merit. Second, that counsel had
no reasonable basis for his action or inaction. In
determining whether counsel’s action was reasonable,
we do not question whether there were other more
logical courses of action which counsel could have
pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis. Finally,
[a]ppellant must establish that he has been
prejudiced by counsel’s ineffectiveness; in order to
meet this burden, he must show that but for the act
or omission in question, the outcome of the
proceedings would have been different. A claim of
-4-
J. S37045/20
ineffectiveness may be denied by a showing that the
petitioner’s evidence fails to meet any of these
prongs.
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007) (citations
and quotation marks omitted).
[A] PCRA petitioner will be granted relief only when he
proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the [i]neffective
assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-
determining process that no reliable adjudication of
guilt or innocence could have taken place.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation
marks omitted; some brackets in original), citing 42 Pa.C.S.A.
§ 9543(a)(2)(ii).
“A failure to satisfy any prong of the test for ineffectiveness will require
rejection of the claim.” Commonwealth v. Watson, 835 A.2d 786, 793
(Pa.Super. 2003). Furthermore, “a court is not required to analyze the
elements of an ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the Strickland3 test, the court
may proceed to that element first.” Commonwealth v. Lesko, 15 A.3d 345,
374 (Pa. 2011). “If it is clear that Appellant has not demonstrated that
counsel’s act or omission adversely affected the outcome of the proceedings,
3 Strickland v. Washington, 466 U.S. 668 (1984) (holding that to establish
ineffectiveness, appellant must show the underlying claim has arguable merit,
there was no reasonable basis for counsel’s actions or failure to act, and
appellant was prejudiced).
-5-
J. S37045/20
the claim may be dismissed on that basis alone and the court need not first
determine whether the first and second prongs have been met.”
Commonwealth v Albrecht, 720 A.2d 693, 701 (Pa. 1998).
Appellant claims his trial counsel was ineffective for not filing a petition
for allowance of appeal to our supreme court after this court vacated
appellant’s sentence and remanded the matter for resentencing. “[W]hile a
defendant does not have an automatic right to an appeal in the [s]upreme
[c]ourt, he has a right to file a PAA,4 provided that appellate counsel believes
that the claims that a petitioner would raise . . . would not be completely
frivolous.’” Commonwealth v. Ellison, 851 A.2d 977, 979 (Pa.Super.2004),
(citations and quotation marks omitted; emphasis in original), appeal
denied, 862 A.2d 1253 (Pa. 2004). However,
[b]efore a court will find ineffectiveness of counsel for
failing to file a direct appeal, the defendant must
prove that he requested an appeal and that counsel
disregarded that request. Clearly, if a request to file
a direct appeal is necessary to sustain an
ineffectiveness claim based upon the failure to file a
direct appeal, then such a request is also necessary
where the alleged ineffectiveness is the failure to file
a petition for allowance of appeal.
Commonwealth v. Bath, 907 A.2d 619, 622 (Pa.Super. 2006) (citations and
quotation marks omitted), appeal denied, 918 A.2d 741 (Pa. 2007).
Attorney Frisby, appellate counsel, testified to his actions after the
decision of this court en banc.
4 PAA stands for petition for allowance of appeal.
-6-
J. S37045/20
I remember sending [appellant] a letter after the
en banc panel explaining their holding. I believe I
included a copy of the en banc panel decision. And I
believe my practice would be to have informed him of
my belief as to the viability of the [s]upreme [c]ourt
appeal. However, I don’t have a distinct recollection
of that letter. And, unfortunately, I provided my file
to Mr. Simon and the computer where I drafted those
letters has crashed and is now in a forever reboot
mode so I can’t actually access my digital copy of that
letter anymore either.
I remember sending the letter. And it’s a fairly form
letter, but I don’t remember the exact contents of it.
But I believe I would have told him, [h]ere is the
[s]uperior [c]ourt opinion, here is what they decided,
we can go to the [s]upreme [c]ourt in this case, I
believe I would have said, I don’t believe it is likely to
be granted.
Id. at 28 (bolding and italics added). He further testified that his letter would
have informed appellant of this court’s decision and the reasons for the
decision. (Id. at 35.) He would also have instructed appellant as follows:
At this point you have a few decisions you can make.
You can either request a review by the [s]upreme
[c]ourt or you may elect to let it stand and review your
matter in any other way including under [the] Post
Conviction Relief Act. The decision is up to you.
However, if you are going to file a petition for allocatur
you must do so within 30 days of the date of the
[s]uperior [c]ourt’s opinion. Let me know how you
wish to proceed.
Id. at 35-36. Attorney Frisby stated:
I know I communicated with [appellant] on several
occasions. I would have sent him a letter upon my
appointment. I would have sent him a letter upon my
filing of my initial three panel decision filing. I would
have sent him a letter after receiving that three panel
– three member panel decision. I would have sent
-7-
J. S37045/20
him another letter upon the en banc grant. I would
have sent him a letter including my brief for the
en banc decision. And I would have included a letter
after argument to give him my feeling as to how the
argument went. And then [he] would have sent him
another letter after receiving the en banc decision.
Id. at 36-37 (bolding and italics added). Had appellant communicated with
Attorney Frisby via letter, if he wanted to do so, Attorney Frisby would have
received it. (Id. at 38.) Furthermore, if Attorney Frisby had received
correspondence from appellant, it would have been in the file he gave to
David M. Simon, Esq., who was subsequently appointed to represent appellant
at resentencing. (Id. at 39.)
The PCRA court found the issue of Attorney Frisby’s ineffectiveness came
“down to a question of credibility.” (PCRA court Rule 1925(a) opinion, 1/8/20
at 10.) The PCRA court noted that:
[P]rior to the second evidentiary hearing, the
Commonwealth obtained and distributed copies of the
correspondence it had obtained from Mr. Simon’s file
in his representation of [appellant]. Unfortunately,
this correspondence fails to directly address the issue
at hand. However, [appellant], in one piece of this
correspondence, addressed his concerns regarding
the merits of Mr. Simon’s advice as to the withdrawal
of his direct appeal, in favor of filing a PCRA petition.
[Appellant] stated therein; [sic] ‘I am in receipt of
your letter i [sic] been doing a lot of thinking about
my decision about the PCRA. So you think a PCRA is
a better successful move for us? My other [l]awyer
said the same thing i [sic] really don’t know what to
do please help me come to a decision please.”
(Court’s Exhibit “A”) The [PCRA] [c]ourt finds this
comment supports Mr. Frisby’s testimony that he
advised [appellant] of his right to file a PAA or, in the
alternative, file a PCRA petition.
-8-
J. S37045/20
Id. at 10-11.
The PCRA court found that appellant did not request Attorney Frisby to
file a PAA. The PCRA court’s credibility determinations are supported by the
record, and its legal conclusions are free of legal error. Accordingly, we agree
that appellant’s claim of ineffective assistance of counsel is without merit.5
Appellant avers that the PCRA court erred when it denied him permission
to amend/supplement his PCRA petition, thereby violating Pa.R.Crim.P. 905.
Appellant’s counsel asserts that the PCRA court should have permitted him to
file a supplemental PCRA petition asserting the ineffectiveness claims, raised
by Attorney Buck in her amended PCRA petition, with respect to
Attorney Scott. (Appellant’s brief at 14, 21-22.)
Pennsylvania Rule of Criminal Procedure 905 provides, in relevant part:
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.Crim.P. 905(A). Our supreme court has stated that the purpose of
Rule 905 is “to provide PCRA petitioners with a legitimate opportunity to
present their claims to the PCRA court in a manner sufficient to avoid dismissal
5 We further note that appellant has not challenged this court’s “holding on
the waiver issue. As the waiver issue does not go to the merits of the appeal
but, instead raises an issue of counsel’s ineffectiveness to preserve the issues,
it is not reviewable on direct appeal.” Id. at 10. See Commonwealth v.
Rosenthal, 233 A.3d 880, 886 (Pa.Super. June 8, 2020) (finding ineffective
assistance of counsel claim not cognizable on direct appeal and must be
deferred to collateral review).
-9-
J. S37045/20
due to a correctable defect in claim pleading or presentation.”
Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003), citing
Commonwealth v. Williams, 782 A.2d 517, 526-527 (Pa. 2001).
“Adherence to this liberal standard for amendment is essential because
criminal defendants may have just one opportunity to pursue collateral relief
in state court.” Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa. 2018),
citing Commonwealth v. Flanagan, 854 A.2d 489, 499-500 (Pa. 2004),
affirmed and remanded for trial, 854 A.2d 489 (Pa. 2004), reargument
denied, 861 A.2d 254 (Pa. 2004). The Flanagan court further found that it
is left to the discretion of the PCRA courts to permit a petition to amend a
PCRA petition. Flanagan, 854 A.2d at 500.
However, Pennsylvania Rule of Criminal Procedure 902(B) requires that
“[e]ach ground relied upon in support of the relief requested shall be stated
in the [PCRA] petition. Failure to state such a ground in the petition shall
preclude the defendant from raising that ground in any proceeding for
post-conviction collateral relief.” Pa.R.Crim.P. 902(B). Further,
it is clear from [Rule 905(A)]’s text that leave to
amend must be sought and obtained, and hence,
amendments are not self-authorizing. . . . [A]
petitioner may not simply amend a pending petition
with a supplemental pleading.” Rather, Rule 905
explicitly states that amendment is permitted only by
direction or leave of the PCRA Court.
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (citations
and quotation marks omitted).
- 10 -
J. S37045/20
In addition, “[t]he assertion of a new claim after the court has heard
argument and indicated its intent to dismiss the petition militates in favor of
the decision to deny leave to amend.” Commonwealth v. Williams, 732
A.2d 1167, 1191 (Pa. 1999). A petitioner “does not . . . have the right to
amend his PCRA petition after the lower court has already denied it.”
Commonwealth v. Jones, 815 A.2d 598 (Pa. 2002) (citation omitted).
Here, Attorney Buck filed an amended PCRA petition asserting
Attorney Simon’s6 ineffectiveness as follows:
21. . . . (1) as a matter of law, Mr. Simon, Esquire,
was ineffective at [appellant]’s re-sentencing
for advising [appellant] that all of his issues
previously raised on appeal were precluded
from further review; and (2) assuming
Mr. Simon withdrew the appeal at his client’s
request, Mr. Simon deprived [appellant] of his
appellate rights by withdrawing the appeal.
Appellant’s amended PCRA petition, 7/9/18 at unnumbered 4, ¶ 21.
Attorney Buck was permitted to withdraw and present counsel,
Attorney Levin, was appointed. He filed an amended PCRA petition alleging
that “[c]ounsel was ineffective for failing to file an [a]llocatur [p]etition to the
Supreme Court of Pennsylvania.” (Amended PCRA petition, 10/15/18 at 4.)
In a footnote, Attorney Levin states that if appellant’s issue of allocatur is
denied, appellant requests to submit a supplemental PCRA petition on the
issue of Attorney’s Simon’s withdrawal of appellant’s appeal. (Id. at 4 n.1.)
6 Resentencing and second direct appeal counsel.
- 11 -
J. S37045/20
Appellant’s current PCRA counsel was neither precluded from asserting
Attorney Simon’s ineffectiveness in his October 15, 2018 amended PCRA
petition, nor arguing it at the PCRA hearings. Counsel, however, contends
that the matter of the nunc pro tunc appeal to the supreme court had to be
decided before any other issues could be litigated. (Appellant’s brief at 22.)
At the September 26, 2019 PCRA hearing, Attorney Levin stated as follows:
Your Honor, if I am filing for a nunc pro tunc then I
am not able to raise any of the other issues. If he’s
saying my lawyer never filed an appeal either to
Superior Court or Supreme Court and he also listed as
pro se, also the lawyer was drunk at trial or he didn’t
call a witness or he didn’t do something else, I can’t
raise that because my only issue at this point is the
nunc pro tunc appeal which is why it was put in there
under Rule 905; that if the nunc pro tunc is
disallowed, then I am allowed to raise the other
issues.
So I couldn’t raise what Susan Buck raised about the
Superior Court because the DA’s Office is going to say
to me, which issue are you going on; the allocatur or
the Superior Court? I figure at this point, the allocatur
was the better issue. If we lost on that then I want to
go on the amended PCRA that Ms. Buck filed which is
that David Simon filed the notice of appeal, that [sic]
he wrote [appellant]. He said you can’t go forward on
it because the issues aren’t good and the appeal was
withdrawn and Mr. Simon was wrong in that regard.
I -- he told me that and I don’t know if he told -- that’s
the issue with Ms. Buck’s appeal.
Notes of testimony, 9/26/19 at 10-11. Appellant cites no case law in support
of this contention.
Claims may be waived, under Pa.R.A.P. 2119(a), for failure to cite to
relevant case law or to otherwise develop issues in a meaningful fashion
- 12 -
J. S37045/20
capable of review. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (indicating that “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived”
(citations omitted)). Furthermore, as noted by the PCRA court:
Since [appellant] did not seek to amend his “second
amended petition,” filed by Mr. Levin, to include this
allegation [as to Attorney Simon’s ineffectiveness], it
is deemed waived. Although [appellant] mistakenly
asserts that he has preserved this issue simply by
making reference to it in his petition, this is
insufficient in view of Baumhammers.
PCRA court Rule 1925(a) opinion at 12. Thus, the allegation of error in the
PCRA court’s denial of a supplemental PCRA petition by appellant is waived.7
For all the foregoing reasons, we affirm the September 26, 2019 order
of the PCRA court.
Order affirmed.
7 To the extent that appellant would have sought to raise additional issues in
his discontinued resentencing appeal, he would not have been permitted to
raise any substantive issues involving his conviction, but only issues related
to his resentencing.
- 13 -
J. S37045/20
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/01/2020
- 14 -