Com. v. Gannaway, S.

J-S02003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAKUR D. GANNAWAY :
:
Appellant : No. 941 MDA 2022
Appeal from the PCRA Order Entered June 13, 2022
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003906-2009
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED: JUNE 1, 2023
Shakur D. Gannaway appeals, pro se, from the order dismissing his
timely petition pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. Gannaway asserts the PCRA court committed 12
distinct errors. After careful review, we affirm.
Gannaway was convicted of armed robbery and related charges in 2010
and sentenced to fifteen to thirty years’ incarceration. The post-sentence
procedural history of this case, in contrast, is lengthy and complicated.
However, for purposes of this appeal, that history can be summarized
as follows. Following Gannaway’s conviction he was represented by a series
of attorneys. Despite this, Gannaway failed to receive direct appellate review
of his judgment of sentence, despite having those rights restored nunc pro
tunc through the filing of a previous PCRA petition.
J-S02003-23
As a result, Gannaway subsequently had his direct appeal rights
reinstated through a federal habeas corpus petition. He then filed a direct
appeal to this Court in which he challenged the admissibility of his
identification at trial and the weight and sufficiency of the evidence for his
conviction. See Commonwealth v. Gannaway, 1000 MDA 2019 (Pa. Super.
filed Nov. 9, 2020) (unpublished memorandum). The prior panel of this Court
found Gannaway’s claims to be meritless. See id.
Gannaway filed the instant PCRA Petition pro se on October 20, 2020.
Counsel was appointed and filed a Turner/Finley1 letter along with a motion
to withdraw. Counsel was permitted to withdraw and the PCRA court
subsequently dismissed his petition in an order dated June 8, 2022, and
docketed on June 13, 2022. Gannaway filed a pro se Notice of Appeal to this
Court on June 30, 2022.
Gannaway’s Notice of Appeal purported to be taken from an order of
May 8, 2022. See Notice of Appeal IFP Docketed, 7/5/2022. This Court issued
a rule to show cause indicating the referenced order did not exist and directing
Gannaway to explain why his appeal should not be quashed as taken from an
____________________________________________
1 Counsel petitioning to withdraw from PCRA representation is required to
proceed under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Counsel must
review the record, submit a “no-merit” letter to the PCRA court which
evaluates the issues the petitioner wishes to address and explains their lack
of merit, request permission to withdraw, and send the “no-merit” letter and
petition to withdraw to their client along with an explanation of their right to
proceed pro se.
-2-
J-S02003-23
order not properly docketed or alternatively, as untimely. See Rule to Show
Cause, 7/28/2022. Gannaway filed a lengthy response, including the order he
intended to appeal from. See Response to Rule to Show Cause, 8/8/2022. The
issue was referred to this panel. See Order Discharging Rule to Show Cause,
8/24/2022. After reviewing Gannaway’s response and the record, we find that
he made an error in listing the order date as May 8, 2022, and intended to
appeal from the dismissal dated June 8, 2022, and docketed June 13, 2022.
We decline to quash on these grounds and accept this appeal as properly filed.
After filing his brief, Gannaway filed four applications for relief, on
October 17, 2022, November 7, 2022, December 5, 2022 and January 13,
2023, and three reply briefs on November 15, 2022, December 9, 2022, and
January 5, 2023.
We will address Gannaway’s reply briefs first. Our Rules of Appellate
Procedure provide that a reply brief must be served and filed within 14 days
of the preceding brief. See Pa.R.A.P. 2185(a)(1). The Commonwealth filed its
appellee’s brief on October 24, 2022. Therefore, all three reply briefs are
untimely. Further, a reply brief may only contain responses to issues raised in
the preceding brief and not already addressed in the initial brief. See Pa.R.A.P.
2113(a). After reviewing Gannaway’s reply briefs, it is clear that they do not
respond to the Commonwealth’s brief and simply contain recitations of his
originally briefed arguments.
-3-
J-S02003-23
Turning to Gannaway’s applications for relief, we note that this Court
entered an order granting his December 5, 2022 application for relief, allowing
Gannaway to exceed the page limits for his reply briefs filed November 15,
2022, and December 9, 2022. See Order 12/23/2022. The two prior
applications for relief were deferred for disposition by this panel. See Order
10/19/2022; Order 12/23/2022.
Gannaway’s October 17, 2022 application for relief requests his
immediate release and financial compensation because his criminal complaint
was not signed by a judge. This issue is addressed in his brief and the
application for relief is denied. The application for relief filed November 7,
2022, simply restates some of Gannaway’s issues on appeal and focuses on
the relief he believes he is due pursuant to the ruling on his habeas
corpus petition. This application for relief is denied. The final application for
relief, filed January 13, 2023, is in fact titled as a brief and, pursuant to
Pa.R.A.P. 2185(a)(1), is untimely. The arguments in this reply brief do not
address any new issues raised by the Commonwealth and instead repeat
claims raised in Gannaway’s initial brief.
Proceeding to the substance of Gannaway’s appeal, we recognize that
his brief is mostly comprised of a combination of prior filings from his federal
habeas corpus proceeding and his direct appeal and the points made in these
filings were addressed in those proceedings. Gannaway’s “Statement of
Questions Presented” includes fourteen points, mostly in a narrative form that
-4-
J-S02003-23
does not clearly indicate the issue raised on appeal. See Appellant’s Brief at
3-4. We have numbered and summarized Gannaway’s issues, to the best of
our ability to discern them, for ease of analysis:
1) The trial court erred in not dismissing the case due to a defective
warrant/complaint;
2) The trial court erred in denying Gannaway’s speedy trial motion;
3) The trial court erred in imposing an illegal sentence for robbery;
4) The trial court erred in failing to suppress Gannaway’s identification;
5) The verdict was against the sufficiency and/or weight of the
evidence;
6) All prior attorneys were ineffective for failing to raise meritorious
issues;
7) Trial counsel was ineffective for failing to admit recanting
correspondence from Gannaway’s co-defendant;
8) Trial counsel was ineffective for failing to strike a juror who was
prejudicial to Gannaway;
9) PCRA counsel was ineffective for failing to raise the issue of trial
counsel’s ineffectiveness;
10) The trial court erred in failing to find a violation of Batson2;
11) Trial counsel was ineffective for failing to object to the use of
Gannaway’s DNA;
12) The trial court erred in allowing counsel to withdraw;
13) There was insufficient evidence to convict Gannaway of first-
degree robbery;
14) There was insufficient evidence to prove bodily injury and impose
a consecutive sentence.
Before we begin our analysis, we note that Gannaway has included in
his brief arguments relating to a separate, financial claim he wishes to bring
against several people. See, e.g., Appellant’s Brief, at 3 (describing
Gannaway’s private criminal complaint alleging identity theft). The record
____________________________________________
2 Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (allowing criminal defendants
to raise claims that peremptory challenges were used by the prosecution for
purposeful discrimination in selecting jurors at the defendant’s trial).
-5-
J-S02003-23
contains some correspondence regarding this claim, but as it does not relate
to this PCRA petition, we will not address it.
When reviewing an order dismissing a PCRA petition we determine
whether the record supports the PCRA court’s finding and whether it is free of
legal error. See Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018).
We must view the record in a light most favorable to the prevailing party. See
id.We will address each of Gannaway’s claims individually. However, we
must note that Gannaway’s brief is written with a repeating theme of his being
owed relief due to the decision by the federal court to grant his habeas corpus
petition. Gannaway was granted relief in the form of his nunc pro tunc direct
appeal. To best address the merits of Gannaway’s current appeal we have
interpreted his claims in the posture of a PCRA proceeding. In its brief, the
Commonwealth re-stated many of Gannaway’s claims as ineffectiveness
claims. While he does not phrase them this way in his brief, we agree that this
is the best way to address them properly. However, we note that Gannaway’s
failure to properly frame his issues could constitute reason enough for them
to fail, as claims of trial court error have either been previously litigated or
waived at the PCRA stage. See Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 780 (Pa. Super. 2015).
Counsel is presumed effective and the person claiming ineffectiveness
must prove otherwise. See Commonwealth v. Koehler, 36 A.3d 121, 178
-6-
J-S02003-23
(Pa. 2012). To succeed on a claim of ineffective assistance of counsel, a
petitioner must plead and prove three things: “(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. Stultz, 114 A.3d 865, 880 (Pa. Super. 2015) (citation
omitted). If the petitioner fails to meet any one of these prongs, their claim
fails. See id.Gannaway’s first issue focuses on the original criminal complaint in this
case. Gannaway argues that the complaint was not signed by a judge and
therefore the warrant and complaint were defective. See Appellant’s Brief at
3. Even if we construe this as a claim challenging jurisdiction, we note that
such a claim is waived because it was not raised prior to the conclusion of
Gannaway’s preliminary hearing. See Pa.R.Crim.P. 109. Further, if we
construe this as a claim of trial counsel’s ineffectiveness for failing to raise the
objection at the proper time, we note that Gannaway presents this issue for
the first time in his brief. It was not raised in his pro se PCRA petition or his
Pa.R.A.P. 1925(b) Statement. This claim is therefore waived, as it was not
raised in the PCRA court and issues may not be raised for the first time on
appeal. See Commonwealth v. Bedell, 954 A.2d 1209, 1216 (Pa. Super.
2008).
We interpret Gannaway’s second issue as a claim that trial counsel was
ineffective for failing to file a Pa.R.Crim.P. 600, or “prompt trial” motion. See
-7-
J-S02003-23
Appellant’s Brief at 3. Prior to his trial, Gannaway represented himself pro se
and litigated several pretrial motions, including a Rule 600 motion. See N.T.
4/9/2010 at 97-99. That motion was denied. See id.Gannaway was arrested on May 25, 2009, and trial began on May 24,
2010. The trial court was not concerned with categorizing the various pretrial
continuances in the case as the trial took place under the 365-day mandate
of Rule 600(A)(2)(a). See id.; see also Commonwealth v. McCarthy, 180
A.3d 368, 375 (Pa. Super. 2018) (“Rule 600 requires the Commonwealth to
try a defendant within 365 days of the filing of the complaint.” (citation
omitted)).
Additionally, Gannaway cannot succeed on an ineffectiveness claim
against his own pro se representation. See Commonwealth v. Fletcher, 986
A.2d 759, 774 (Pa. 2009). Even if we were to reach the merits of Gannaway’s
claim, we would find it to be factually incorrect, a Rule 600 motion was filed,
and it failed. To the extent that Gannaway wishes to challenge the trial court’s
ruling on the motion, or a different counsel’s failure to re-raise the issue, the
underlying claim lacks arguable merit as Gannaway did not possess a valid
claim under Rule 600 at the time of trial.
We frame Gannaway’s third claim as one asserting ineffectiveness of
trial counsel for failing to challenge the legality of his sentence for robbery.
Gannaway’s claim alleges that he was illegally sentenced to first degree
-8-
J-S02003-23
robbery and the sentencing guidelines and rules for merger were not
considered. See Appellant’s Brief at 3.
Gannaway was convicted of violating 18 Pa.C.S.A. §3701(a)(1)(ii): “A
person is guilty of robbery if, in the course of committing a theft, he: threatens
another with or intentionally puts him in fear of immediate serious bodily
injury.” The statute provides that this subsection be graded as a felony of the
first degree. See 18 Pa.C.S.A. §3701(b)(1).
We discern his argument to mean that Gannaway believes his sentences
for robbery and conspiracy should have merged. Gannaway was sentenced to
10 to 20 years’ incarceration on the robbery conviction to run consecutive to
5 to 10 years’ incarceration on his conviction for criminal conspiracy.
Gannaway argues that the trial court abused its discretion in sentencing. See
Appellant’s Brief at 6. This claim is not developed as an ineffectiveness claim,
however even if it was, there is no arguable merit to the underlying claim.
Gannaway mentions 42 Pa.C.S.A. § 9765 which provides, “No crimes shall
merge for sentencing purposes unless the crimes arise from a single criminal
act and all of the statutory elements of one offense are included in the
statutory elements of the other offense.” For sentencing purposes, the crime
of conspiracy does not merge with the completed crime. See Commonwealth
v. Jacquez, 113 A.3d 834, 838 (Pa. Super. 2015). Gannaway’s sentences for
robbery and conspiracy to commit robbery do not merge for sentencing and
-9-
J-S02003-23
prior counsel cannot be ineffective for failing to raise a meritless issue. See
Commonwealth v. Fetter, 770 A.2d 762, 770 (Pa. Super. 2001).
Gannaway’s fourth issue, that the trial court erred in failing to suppress
the victim’s identification of him from a lineup, was previously litigated. An
issue is deemed previously litigated if the highest court where review was due
as a matter of right has reviewed the issue on the merits. See 42 Pa.C.S.A. §
9544(a)(2). On direct appeal a panel of this Court reviewed the issue of
whether the trial court erred by not suppressing the identification of Gannaway
by the victim. See Gannaway 1000 MDA 2019 at *6-*10. This Court found
that Gannaway had not established the identification was unreliable or the
procedure used was unduly suggestive. See id. at *10. Therefore, even if
construed as a claim of ineffectiveness of counsel, Gannaway’s fourth issue
merits no relief.
Gannaway’s fifth issue is a mere statement that the verdict was against
the weight and sufficiency of the evidence. On direct appeal, Gannaway raised
the same boilerplate weight and sufficiency claim. See id. at 6. This Court
found that Gannaway’s argument was essentially a weight claim and that he
failed to argue the sufficiency of the evidence. See id. at 11. The weight claim
was previously litigated as the prior panel of this Court found the verdict to be
reasonable and not shocking to the conscience. See id. at 12-13.
The generic sufficiency claim we are left with could be found waived, as
it was not properly raised prior to this PCRA appeal. See 42 Pa.C.S.A.
- 10 -
J-S02003-23
§9544(b). Further, a sufficiency claim is waived when it does not specify the
elements of the crime for which the evidence was insufficient to support the
verdict. See Commonwealth v. Manley, 985 A.2d 256, 261-262 (Pa. Super.
2009).
Any sufficiency claims Gannaway raised during this PCRA appeal are
arguably waived but we will address the arguable merit of the claim to address
the possibility Gannaway intended to raise appellate counsel’s ineffectiveness
for failing to properly raise a sufficiency claim.
Though Gannaway’s fifth issue raises a boilerplate sufficiency claim, his
thirteenth and fourteenth issues go further to develop a claim so we will
discuss the merits of those claims. Gannaway appears to claim that the record
lacks sufficient evidence to prove he injured the victim or that the victim
suffered any injury. See Appellant’s Brief at 4.
As mentioned above, Gannaway was convicted under 18 Pa.C.S.A.
§3701(a)(1)(ii) which requires the Commonwealth to prove that he either
threatened serious bodily injury or put the victim in fear of such injury.
Accordingly, Gannaway is mistaken that evidence of the victim’s injuries is
necessary to establish a violation of this statute.
Instead, as here, the Commonwealth can establish a violation by
presenting evidence that Gannaway threatened serious bodily injury, even if
no injury occurred. Serious bodily injury is defined as, “bodily injury which
creates a substantial risk of death or which causes serious, permanent
- 11 -
J-S02003-23
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ”. 18 Pa.C.S.A. § 2301.
Here, the victim testified that Gannaway and an associate entered the
store where the victim worked, held him at gunpoint and stole the cash from
the register. See N.T. 5/24/2010 at 31-33. He further testified that he
complied with the robbery because he did not want to get shot. See id. The
victim’s testimony provided sufficient evidence to convict Gannaway. See
Commonwealth v. Alford, 880 A.2d 666, 676 (Pa. Super. 2005) (“A
factfinder is entitled to infer that a victim was in mortal fear when a defendant
visibly brandished a firearm.” (citation omitted)). While prior counsel did not
properly raise these sufficiency claims, prior counsel cannot be held to be
ineffective for failing to raise meritless claims. See Commonwealth v.
Fetter, 770 A.2d 762, 770 (Pa. Super. 2001).
Gannaway’s sixth issue addresses his belief that he was abandoned by
his prior attorneys and takes issue with them each failing to raise the
ineffectiveness of the prior attorney. See Appellant’s Brief at 3-4. Gannaway
again addresses his habeas corpus relief and seems to believe that entitles
him to relief here. See id. Again, we note that Gannaway received relief for
the prior ineffectiveness of counsel failing to bring his direct appeal.
Otherwise, he fails to meaningfully develop any clear claims of ineffectiveness
within this issue, and we find it waived. See Commonwealth v. Natividad,
938 A.2d 310, 333 (Pa. 2007).
- 12 -
J-S02003-23
We frame Gannaway’s seventh issue as a claim of ineffective assistance
of counsel for failing to introduce allegedly exculpatory correspondence. See
Appellant’s Brief at 4. Gannaway argues that his co-defendant, Rashad Bair’s,
aunt wrote him a letter in which she explains that her Bair knew Gannaway
was innocent. See Turner/Finley Letter at 9. The record does not reflect
when the letter was written, however it was notarized on January 16, 2011,
approximately a year and a half after trial. See id. at Exhibit A.
Regardless of which prior counsel Gannaway believes should have
introduced the letter, his claim lacks merit. To prove ineffectiveness for failure
to call a witness Gannaway must prove the witness existed, was available to
testify, counsel knew they existed, they were prepared and willing to testify,
and the lack of testimony prejudiced him. See Commonwealth v. Moore,
860 A.2d 88, 99-100 (Pa. 2004). Gannaway has not proved these prongs, he
has simply cited the existence of a letter authored by someone other than the
potential witness.
First, we note the letter does not actually contain exculpatory
statements. The letter references Bair believing a man named “Shaun” to be
innocent, but does not identify any facts supporting this belief. See
Turner/Finley Letter at 9. Second, the letter does not establish that Bair is
willing to testify for Gannaway. See id.- 13 -
J-S02003-23
This claim lacks any merit and again, counsel cannot be ineffective for
failing to raise a meritless claim. See Natividad, 938 A.2d 310, 333 (Pa.
2007).
In his eighth issue Gannaway claims trial counsel was ineffective for
failing to remove a juror who he believes prejudiced him at trial. See
Appellant’s Brief at 4. Gannaway claims in his PCRA petition that the juror,
Iris Gonzalez, knew his ex-girlfriend. See PCRA petition, 11/20/2020. The trial
record reflects that Gonzalez was seated as a juror but neither this connection
nor any bias was acknowledged at jury selection. See N.T. 5/24/2010 (Voir
Dire) at 16-42.
Gannaway had the right to a fair and impartial jury panel at trial. See
Commonwealth v. Davis, 273 A.3d 1228, 1239 (Pa. Super. 2022). It is the
responsibility of the trial court to conduct an adequate voir dire to secure such
a panel. See id. Gannaway has not shown how Gonzalez’ presence on the jury
prejudiced him. It is not clear whether Gonzalez was familiar with Gannaway
at all, he only alleges that she went to community college with his ex-
girlfriend, he does not explain the extent of their interactions or if he ever met
her himself. See Appellant’s Brief at 4. Based on the tenuous nature of this
connection, and the fact that there is no record that counsel was aware of the
connection at all, counsel cannot be found ineffective for failing to raise the
meritless issue. See Fetter, 770 A.2d 762, 770 (Pa. Super. 2001).
- 14 -
J-S02003-23
Gannaway’s ninth claim suggests that prior counsel should have raised
the issue of trial counsel’s ineffectiveness and alleges that trial counsel was
disbarred for ineffectiveness. See Appellant’s Brief at 4. In fact, attorney
Nicholas Stroumbakis was suspended for a six-month period in 2016 for failing
to appear before the Disciplinary Counsel at a proceeding that was invoked
due to his failure to file post-sentence motions and perfect an appeal for a
client. See Office of Disciplinary Counsel v. Stroumbakis, No. 203 DB
2014 (Pa.). Stroumbakis’ failure to file a direct appeal in Gannaway’s case was
rectified when Gannaway received relief in his federal habeas corpus
proceeding in the form of a reinstated direct appeal. Gannaway has already
received relief for this instance of Stroumbakis’ ineffectiveness and this claim
has been resolved. His ninth issue on appeal merits no relief.
We frame Gannaway’s tenth issue as claiming trial counsel was
ineffective for failing to raise a Batson challenge. See Appellant’s Brief at 4.
In this claim Gannaway references the first attempt at jury selection in this
case, which did not result in a jury panel. At the second jury selection, the
trial court explained:
THE COURT: Mr. Stroumbakis, before we get started, I want to –
I just saw something in my notes here. We were here April 12th
and we started to pick – we started to pick a jury and we did not
finish.
And at the end of that, because we were not able to get 12
jurors, we did not go forward. And at that time you requested a
mistrial, and I granted a mistrial. Technically it’s not a mistrial. A
mistrial doesn’t occur until the jury is sworn in. So it was not a
mistrial.
- 15 -
J-S02003-23
I want the record to be clear on that. It simply was we
started to pick a jury and we never finished picking a jury. So it’s
not even an issue of whether it’s manifest necessity or not or what
caused it.
The point was, we were unable to get 12 people to say that
they would give the Defendant a fair trial. So we continued it to
today to bring in another panel. So that’s why we’re here today.
N.T. 5/24/2010 (Voir Dire) at 2-3. The record reflects no Batson challenge
during either voir dire.
To establish ineffectiveness for failure to raise a Batson challenge, the
petitioner must prove the prosecutor used peremptory strikes in a purposeful
manner to racially discriminate against the defendant. See Commonwealth
v. Smith, 17 A.3d 873, 892 (Pa. 2011). In order for us to adequately review
such a claim, the petitioner must make a record which includes the race of the
jury panel, the jurors stricken by the Commonwealth and those who were
stricken by the defense. See Commonwealth v. Simpson, 66 A.3d 253, 262
(Pa. 2013). The record before us provides none of this information, and
Gannaway does not even attempt to make claims regarding it other than PCRA
counsel’s assertion in his Turner/Finley letter that the first jury panel
contained Black and Hispanic venirepersons while the second panel did not.
See Turner/Finley letter at 11. Gannaway has shown no arguable merit to a
Batson challenge and therefore his claim of ineffective assistance of counsel
was properly rejected.
- 16 -
J-S02003-23
In his eleventh issue Gannaway claims trial counsel was ineffective for
failing to object to the use of his DNA at trial. See Appellant’s Brief at 4.
Gannaway did not raise this issue in his PCRA petition or his Pa.R.A.P. 1925(b)
statement. As such, PCRA counsel did not address it in his Turner/Finley
letter and the PCRA court was unable to consider it in their decision. Further,
Gannaway makes no attempt to develop the argument in his appellate brief.
We are constrained to find this issue waived as it was not addressed in the
PCRA court and no discernible argument has been raised on appeal. See
Bedell, 954 A.2d 1209, 1216 (Pa. Super. 2008).
Gannaway’s twelfth issue claims error in the PCRA court for his attorney
being permitted to withdraw. See Appellant’s Brief at 4. As we stated at the
beginning of this review, PCRA counsel and the PCRA court complied with the
Turner/Finley process when counsel withdrew. The PCRA court actually went
beyond the requirements of Turner/Finley and ordered counsel to file a
statement confirming he corresponded with Gannaway regarding all his
potential issues and responding to Gannaway’s response to the
Turner/Finley letter. See Order 1/18/2022. Counsel complied and only then
did the PCRA court issue its notice of intent to dismiss the PCRA. See Order
and Notice of Intent to Dismiss, 5/4/2022. The court and counsel followed all
proper procedure and no error was committed regarding counsel’s withdrawal,
this claim lacks merit.
Order affirmed. Applications for Relief denied.
- 17 -
J-S02003-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/1/2023
- 18 -