Com. v. Hart, T.

J-S72044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
TYRELL HART :
: No. 3779 EDA 2016
Appellant
Appeal from the PCRA Order November 18, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000461-2010
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 01, 2017
Appellant Tyrell Hart appeals pro se from the order entered in the Court
of Common Pleas of Philadelphia County dismissing, without an evidentiary
hearing, his first petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.
The PCRA court has aptly set forth, in part, the facts and procedural
history underlying this appeal as follows:
[Following his arrest and the appointment of David
Rudenstein, Esquire,] [o]n March 27, 2012, the day before trial,
the [trial] court denied [Appellant’s] request for a continuance in
order to retain new counsel as he was not satisfied with. . .his
appointed counsel. The new counsel, Charles Peruto, Jr., had not
entered his appearance and was not prepared to proceed to trial.
[Appellant] had only met with [Attorney] Peruto once before, at
[Appellant’s] preliminary hearing on January 12, 2010. On March
27, 2012, [Attorney] Peruto met with [Appellant] at the [trial]
court’s request, to communicate the Commonwealth’s plea offer
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72044-17
and explain to [Appellant] that he would not be representing
[Appellant] at trial.
Later that day,. . .the brother-in-law of [Appellant]
attempted to retain new counsel, Attorney Shaka Johnson. On
the day of trial, March 28, 2012, the [trial] court permitted
[Attorney] Johnson to discuss the Commonwealth’s plea offer with
[Appellant], but would not permit him to represent [Appellant] at
trial because he was not prepared for trial. [Appellant rejected the
plea offer, and a jury trial commenced with Attorney Rudenstein
representing Appellant.]
At trial, the Commonwealth proved the following:
The victim, Selene Raynor (“Selene”) was pregnant with
[Appellant’s] baby. On October 13, 2009, Danette Raynor
(“Danette”), Selene’s mother, overheard a telephone conversation
between [Appellant] and Selene. Danette testified that in
response to Selene telling [Appellant] she was going to keep the
baby, [Appellant] got angry. The next day, Selene received a
phone call from [Appellant], after which she borrowed her
mother’s vehicle and picked up [Appellant] at Twenty-Ninth and
Montgomery Avenue in Philadelphia. They drove around for a
while before Selene turned onto North Newkirk Street and parked
the vehicle.
While in the parked vehicle, [Appellant] shot Selene in the
head, killing her and the unborn child. Selene’s body was found
the next day inside her mother’s vehicle at 1920 North Newkirk
Street.
On October 15, 2009, [Appellant] was questioned by police.
[Appellant] made two statements on October 16, 2009. In the
first statement, he claimed the gun accidentally fired when he
heard a loud noise that caused him to jump while he was playing
with it. In the second statement, given to police approximately
eight and one half hours later, [Appellant] admitted that he
intentionally shot Selene because he was angry, scared, and
frustrated over her being pregnant. He claimed that he aimed for
Selene’s shoulder. [Appellant] also admitted to police that the
whole time he was in the car with Selene—about twenty minutes-
he was thinking about shooting her. Both statements were
admitted into evidence at trial.
Based on [Appellant’s] statements, the police were able to
locate the gun at the home of Shayonna Price (“Price”), the cousin
of [Appellant’s] best friend. A ballistics expert testified that the
-2-
J-S72044-17
gun [Appellant] used to shoot Selene required five pounds of
pressure to be applied on the trigger in order for the gun to shoot.
Therefore, according to the expert, the trigger had to be pulled to
fire.
The medical evidence was that Selene had been shot in the
head and that she had died from that wound and that her unborn
baby had died as the result of Selene’s death.
PCRA Court Opinion, filed 6/28/17, at 2-3.
Following the conclusion of testimony, the jury convicted Appellant of
first-degree murder, third-degree murder of an unborn children, carrying a
firearm without a license, and possessing an instrument of crime.1 Appellant
proceeded immediately to sentencing, and the trial court sentenced Appellant
to an aggregate of life in prison without parole.
Appellant did not file post-sentence motions; however, he filed a timely,
counseled direct appeal. On appeal, Appellant presented the issue of whether
the trial court denied Appellant a fair trial. Specifically, he alleged his
constitutional rights were violated when the trial court prevented him from
being represented by the attorney of his choice by denying his request for a
continuance in connection therewith. After a careful review, we found no merit
to Appellant’s claim.
Further, we noted that, on appeal, Appellant filed a motion to remand
for an evidentiary hearing on the basis of after-discovered evidence, i.e., a
newspaper article, which stated that two homicide detectives involved in
____________________________________________
1 18 Pa.C.S.A. §§ 2502(a), 2604(c), 6106, and 907, respectively.
-3-
J-S72044-17
Appellant’s case had coerced confessions from other criminal defendants.
Appellant attached to the motion his affidavit, in which he outlined alleged
coercive tactics utilized by the detectives in his case. However, we found
Appellant’s after-discovered evidence claim to be waived due to Appellant’s
failure to cite any relevant authority, and we denied his claim without
prejudice to his right to pursue the claim on collateral review. Accordingly, on
March 21, 2014, we affirmed Appellant’s judgment of sentence.
Commonwealth v. Hart, No. 1231 EDA 2012 (Pa.Super. filed 3/21/14)
(unpublished memorandum). Appellant did not file a petition for allowance of
appeal with our Supreme Court.
On July 3, 2014, Appellant filed a timely pro se PCRA petition, and the
PCRA court appointed counsel to represent him. Thereafter, on July 28, 2016,
counsel filed a petition to withdraw his representation, as well as a
Turner/Finley2 “no-merit” letter. On October 7, 2016, the PCRA court
provided Appellant with notice of its intent to dismiss Appellant’s petition
without an evidentiary hearing. On October 14, 2016, Appellant filed a pro se
response to the notice, and on October 26, 2016, he filed a pro se response
in opposition to counsel’s Turner/Finley letter.
By order entered on November 18, 2016, the PCRA court granted
counsel’s petition to withdraw and dismissed Appellant’s PCRA petition. This
____________________________________________
2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-4-
J-S72044-17
timely pro se appeal followed. The PCRA court directed Appellant to file a
Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA court
filed a responsive Pa.R.A.P. 1925(a) opinion.
Appellant presents the following issues:
1. Whether prior counsel were ineffective for failing to raise a
meritorious Pa.R.Crim.P. 600 (speedy trial rule) motion to
dismiss that deprived [Appellant] of his substantive Sixth (6 th)
and Fourteenth (14th) United States Constitutional
Amendments and/or the Pennsylvania Constitutional right
under Article 1, § 9 depriving a basic human right?
2. Whether [Appellant] was deprived of his substantive (Sixth)
(6th) [Amendment] and Article 1, § 9 Pennsylvania
Constitutional right to effective assistance of counsel on direct
appeal proceedings for the unreasonable failure of counsel to
submit relevant holdings on [after]-discovered evidence that
would have merited a remand on direct appeal for an
evidentiary hearing on a meritorious involuntary confession
claim?
3. Whether Petitioner was denied his substantive Sixth (6th)
[Amendment] and Article 1, § 9 Pennsylvania rights to effective
assistance of counsel on direct appeal for the unreasonable
failure of counsel to cite holdings that were directly-on-point to
[Appellant’s] denial of his substantive right to retained counsel
of choice[?]
4. Whether [Appellant] was denied his substantive Sixth (6th)
[Amendment] and/or Article 1, § 9 Pennsylvania Constitutional
rights to effective assistance of [ ] trial counsel to follow-
through on a requested mistrial due to prejudicial prosecutorial
misconduct used to deprive [Appellant] of fair trial
proceedings?
5. Whether [Appellant] was denied his substantive Sixth (6th)
[Amendment] and Article 1, § 9 Pennsylvania Constitutional
rights to effective assistance of counsel on direct appeal for the
unreasonable failure of counsel to ensure the jury selection
process was transcribed and/or for failing to even review such
material transcripts?
6. Whether [Appellant’s] initial review collateral petition raises
genuine issues of material fact necessitating an evidentiary
-5-
J-S72044-17
hearing per Pa.R.Crim.P. 908(A)(2) to adjudicate [Appellant’s]
ineffective assistance of counsel claims?
Appellant’s Brief at 4.
Initially, we note the following:
When reviewing the denial of a PCRA petition, we must
determine whether the PCRA court’s order is supported by the
record and free of legal error. Generally, we are bound by a PCRA
court’s credibility determinations. However, with regard to a
court’s legal conclusions, we apply a de novo standard.
Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)
(quotation marks and quotations omitted).
Furthermore,
In order to be eligible for PCRA relief, the petitioner must
prove by a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
circumstances found in Section 9543(a)(2), which includes the
ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
It is well-established that counsel is presumed effective, and
to rebut that presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that such deficiency
prejudiced him. To prevail on an ineffectiveness claim, the
petitioner has the burden to prove that (1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance.
The failure to satisfy any one of the prongs will cause the entire
claim to fail.
Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)
(quotation marks, quotations, and citations omitted).
We need not analyze the prongs of an ineffectiveness claim
in any particular order. Rather, we may discuss first any prong
that an appellant cannot satisfy under the prevailing law and the
-6-
J-S72044-17
applicable facts and circumstances of the case. Finally, counsel
cannot be deemed ineffective for failing to raise a meritless claim.
Johnson, 635 Pa. 665, 139 A.3d at 1272 (citations omitted).
Further, to the extent Appellant presents layered claims of
ineffectiveness, we note that:
[l]ayered claims of ineffectiveness are not wholly distinct from the
underlying claims because proof of the underlying claim is an
essential element of the derivative ineffectiveness claim. In
determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the [appellant] asserts was
ineffective did, in fact, render ineffective assistance of counsel. If
that attorney was effective, then subsequent counsel cannot be
deemed ineffective for failing to raise the underlying issue.
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.Super. 2012)
(quotation marks and quotations omitted).
In his first issue, Appellant contends trial and direct appeal counsel were
ineffective in failing to raise a claim that Appellant’s case should have been
dismissed since he was not brought to trial until twenty-nine months after he
was arrested in violation of his speedy trial rights under Pa.R.Crim.P. 600.
The PCRA court found no merit to Appellant’s underlying Rule 600 claim, and
thus, the court held Appellant’s attorneys could not be ineffective. We agree.
When considering Rule 600 issues:
this Court is not permitted to ignore the dual purpose behind Rule
[600]. Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those contemplating
it. However, the administrative mandate of Rule [600] was not
-7-
J-S72044-17
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa.Super. 2014)
(quotation omitted).
Rule 600 provides in pertinent part:3
Rule 600. Prompt Trial
***
(A)(2) Trial in a court case in which a written complaint is
filed against the defendant, when the defendant is incarcerated on
that case, shall commence no later than 180 days from the date
on which the complaint is filed.
(3) Trial in a court case in which a written complaint is
filed against the defendant, when the defendant is at liberty on
bail, shall commence no later than 365 days from the date on
which the complaint is filed.
***
(B) For purposes of this rule, trial shall be deemed to
commence on the date the trial judge calls the case to trial, or the
defendant tenders a plea of guilty or nolo contendere.
(C) In determining the period for commencement of trial,
there shall be excluded therefrom:
***
(3) such period of delay at any stage of the
proceedings as results from:
(a) the unavailability of the defendant or the
defendant’s attorney;
(b) any continuance granted at the request of
the defendant or the defendant’s attorney.
____________________________________________
3 We note that Rule 600 was amended on October 1, 2012, effective July 1,
2013. However, Appellant was brought to trial in March of 2012, and thus,
we shall analyze Appellant’s claim under the version of Rule 600 that was in
effect at that time.
-8-
J-S72044-17
***
(E) No defendant shall be held in pre-trial incarceration on
a given case for a period exceeding 180 days excluding time
described in paragraph (C) above. Any defendant held in excess
of 180 days is entitled upon petition to immediate release on
nominal bail.
***
If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were beyond the
control of the Commonwealth, the motion to dismiss shall be
denied and the case shall be listed for trial on a date certain. If,
on any successive listing of the case, the Commonwealth is not
prepared to proceed to trial on the date fixed, the court shall
determine whether the Commonwealth exercised due diligence in
attempting to be prepared to proceed to trial. If, at any time, it
is determined that the Commonwealth did not exercise due
diligence, the court shall dismiss the charges and discharge the
defendant.
Pa.R.Crim.P. 600 (footnote added).
While “Rule 600 requires the Commonwealth to try a defendant within
365 days of the filing of a criminal complaint[,]. . .[a] defendant. . .is not
automatically entitled to discharge under Rule 600 where trial starts more
than 365 days after the filing of the complaint.” Commonwealth v. Roles,
116 A.3d 122, 125–26 (Pa.Super. 2015). “Rather, Rule 600 ‘provides for
dismissal of charges only in cases in which the defendant has not been brought
to trial within the term of the adjusted run date, after subtracting all
excludable and excusable time.’” Id. at 126 (quotation omitted). “The
adjusted run date is calculated by adding to the mechanical run date, i.e., the
date 365 days from the complaint, both excludable and excusable delay.” Id.
-9-
J-S72044-17
“Excludable time includes delay caused by the defendant or his lawyer[,]
[whereas] excusable delay occurs where the delay is caused by ‘circumstances
beyond the Commonwealth’s control and despite its due diligence.’” Id.
(quotation omitted). “Due diligence is a fact-specific concept that must be
determined on a case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the Commonwealth
that a reasonable effort has been put forth.” Id. (quoting Commonwealth
v. Armstrong, 74 A.3d 228, 236 (Pa.Super. 2013)). Further, “judicial delay
is a justifiable basis for an extension of time if the Commonwealth is ready to
proceed.” Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004)
(en banc) (quotation marks and quotation omitted).
Here, in finding no merit to Appellant’s underlying Rule 600 claim, the
PCRA court relevantly indicated the following:
In the instant case, 188 days of the delay were excludable:
35 days due to [Appellant] not having an attorney, and 153 days
due to defense requests for continuances. In addition, 540
excusable days were due to the difficulty, by the court, in
scheduling a capital case for trial. [For instance, on September
20, 2010, the trial court listed the case for trial on March 26, 2012,
ruling all but twelve days, which was attributed to the
Commonwealth’s request not to schedule trial during the weeks of
Christmas and New Year’s Day, was excusable.] When all
excludable and excusable time is considered, [Appellant] was
brought to trial 165 days after his arrest. Thus, the case was tried
within the time allotted by Rule 600.
PCRA Court Opinion, filed 6/28/17, at 8.
We agree with the PCRA court’s analysis in this regard and, further,
agree that trial counsel cannot be deemed ineffective in failing to raise a
- 10 -
J-S72044-17
meritless claim.4 See Johnson, supra. In this vein, we note that we reject
Appellant’s suggestion that his defense counsel’s requests for continuances do
not constitute “excludable time” for Rule 600 purposes. Rule 600 clearly holds
otherwise. See Pa.R.Crim.P. 600(C)(3).
In his next issue, Appellant contends his direct appeal counsel was
ineffective in failing to submit relevant holdings/authority regarding his after-
discovered evidence claim (i.e., a November 5, 2013, article from The
Philadelphia Daily News indicating two homicide detectives had coerced
confessions from other criminal defendants). Appellant argues that, had
counsel adequately developed the claim on appeal, this Court would not have
found waiver on direct appeal and, additionally, would have remanded for an
evidentiary hearing or provided some other relief.
Our Supreme Court has held that, to prevail on a claim of appellate
counsel ineffectiveness with regard to the manner in which a claim was
litigated on direct appeal, “the PCRA petitioner must show exactly how
appellate counsel was ineffective, by offering additional evidence or controlling
authority, missed by direct appeal counsel, that would have changed the
appeal outcome[.]” Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121,
142 (2012) (quotation marks and quotation omitted).
Further:
____________________________________________
4Further, direct appeal counsel cannot be deemed ineffective in this regard.
See Rykard, supra.
- 11 -
J-S72044-17
To warrant a new trial based on after-discovered evidence,
the appellant must show that the evidence “(1) could not have
been obtained prior to trial by exercising reasonable diligence; (2)
is not merely corroborative or cumulative; (3) will not be used
solely to impeach a witness’s credibility; and (4) would likely result
in a different verdict.” Commonwealth v. Castro, 625 Pa. 582,
588, 93 A.3d 818, 821 (2014) (quoting Commonwealth v.
Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008)).
***
We acknowledge that in Castro, our Supreme Court held
that allegations in a newspaper article “do not constitute
evidence” and thus, were not sufficient to support a motion for an
evidentiary hearing or a new trial. The Supreme Court specifically
stated:
[a]llegations in the media, whether true or false, are
no more evidence than allegations in any other out-
of-court situation. Nothing in these allegations even
read in the broadest sense, can be described as
“evidence,” and references to the officer being under
investigation for misconduct contains no information
regarding what evidence existed to substantiate this
averment. One cannot glean from these bald
allegations what evidence of misconduct [the]
appellee intended to produce at the hearing.
Castro, 625 Pa. at 595, 93 A.3d at 825. As “an evidentiary
hearing is not meant to function as a fishing expedition for any
possible evidence that may support some speculative claim,” the
Supreme Court concluded that Castro “needed to do more than
present an article pointing to allegations that if true have the
potential to aid his cause; he needed to clearly articulate in his
motion what evidence he would present to meet the test.” Id. at
598–99, 93 A.3d at 828.
Commonwealth v. Brown, 134 A.3d 1097, 1108-09 (Pa.Super. 2016).
In the case sub judice, notwithstanding the fact direct appeal counsel
may have been derelict in failing to develop the motion properly on direct
- 12 -
J-S72044-17
appeal with citation to relevant authority so as to avoid waiver, we conclude
Appellant is not entitled to relief.
Under Castro, the newspaper article Appellant attached to his petition
is not “evidence.” Further, as the PCRA court held:
[Appellant] references. . .a newspaper article accusing Detective
James Pitts and Detective Omar Jenkins of coercing statements
from witnesses in other cases. [Appellant] [did not allege in the
trial court] that the statement he gave to detectives was coerced.
Indeed, had [Appellant’s] statement been coerced, that fact would
have been known to him and could have been raised during the
trial.
PCRA Court Opinion, filed 6/28/17, at 9.
Therefore, at most, Appellant could have utilized the newspaper article
to attack the credibility of witnesses who testified that Appellant’s confession
was voluntary. Accordingly, even if the item identified by Appellant comprised
relevant evidence, it would not meet the four-prong admissibility test provided
in Castro as an appellant seeking a new trial must demonstrate that he will
not use the alleged after-discovered evidence “solely to impeach a witness’s
credibility.” Castro, 625 Pa. 582, 93 A.2d at 821 n.7. Accordingly, Appellant
is not entitled to relief on his allegation of ineffective assistance of appellate
counsel in connection with his after-discovered evidence claim.
In his next issue, Appellant contends that appellate counsel was
ineffective in failing to cite legal precedent that would have persuaded this
Court on direct appeal that the trial court abused its discretion in denying
Appellant’s request for a continuance so that he could be represented by the
- 13 -
J-S72044-17
attorney of his choice during the jury trial proceedings. In essence, Appellant
contends that appellate counsel was ineffective in the manner in which he
litigated the issue on direct appeal. We conclude no relief is due.
Appellant claims that, in developing the argument on appeal, direct
appeal counsel should have cited to Commonwealth v. Prysock, 972 A.2d
539 (Pa.Super. 2009), since such was directly on point and factually
indistinguishable from his case. Appellant is correct that, in Prysock, a panel
of this Court held that the trial court abused its discretion in denying an
appellant’s request for a continuance in order to secure new counsel.
However, Appellant is mistaken in his assertion that Prysock is
indistinguishable from the case sub judice.
In concluding the trial court erred in denying the appellant’s request for
a continuance in Prysock, a panel of this Court held the following:
Here, the record does not establish that any of the factors
which we rely on in ascertaining whether the swift administration
of justice would be vitiated by granting the continuance were
present. Although the underlying criminal activity in this matter
occurred in December 2006, [the] appellant was not charged until
May 2007, and counsel was not appointed until some time after
June 28, 2007, less than thirty days prior to the scheduled trial
date of August 8, 2007. While the trial court and the
Commonwealth argue that this trial date was continued, at least
in part, so that [the] appellant could retain private counsel, there
is nothing in the record which substantiates this claim[.]
There is also no indication in the record that [the] appellant
was ever personally warned that he needed to retain counsel by a
specific date or that no further continuances would be granted
after the trial was initially continued. Also, the record
demonstrates that [the] appellant was incarcerated in a state
correctional facility at all times since December 2006, making it
difficult for him to retain counsel in Allegheny County; however,
- 14 -
J-S72044-17
his family did obtain counsel to represent him, who attempted to
enter his appearance on November 2, 2007. Thus, it was apparent
that [the] appellant was not attempting to unreasonably delay the
trial proceedings by claiming that he was going to retain private
counsel when he had no means or intention of doing so.
Further, the trial court relied on a single factor in making its
decision not to grant the requested continuances, the fact of the
prior continuance on August 8, 2007. The record reflects that the
trial court failed to make any inquiry whatsoever into the nature
of the dispute between [the] appellant and appointed counsel, and
thus failed to make the type of detailed factual findings that we
have previously commended and in their absence have found an
abuse of discretion.
Prysock, 972 A.2d at 544-45 (footnotes, citations, quotation marks, and
quotation omitted).
By contrast, in the case sub judice, in concluding the trial court did not
err in denying Appellant’s request for a continuance, a panel of this Court held
the following on direct appeal:
Instantly, the parties appeared for trial on March 27, 2012.
At that time, Attorney Rudenstein orally requested a continuance,
stating Appellant wanted more time to retain Attorney Peruto as
trial counsel. The court asked Attorney Rudenstein if he was
prepared to start trial, and Attorney Rudenstein answered
affirmatively. The court also conducted an on-the-record
teleconference with Attorney Peruto. During the teleconference,
the following exchange occurred:
[ATTORNEY PERUTO]: I am not fully retained. I have
not entered my appearance. I did call the Assistant
District Attorney last week to see if there was any shot
at a third degree plea at all in this case, and I don’t
think we touched base after that.
[THE COMMONWEALTH]: That’s true.
[ATTORNEY PERUTO]: There is a—
THE COURT: Mr. Peruto, you either have to be in or
out. Now, if you’re not in, then Mr. Rudenstein is
going to proceed to try the case today. It’s listed
- 15 -
J-S72044-17
today, and I can’t continue the case just because you
might at some point in the future represent
[Appellant]. You have to tell me whether you’re in or
out.
[ATTORNEY PERUTO]: I agree with you, and I am not
in.
Commonwealth v. Hart, 1231 EDA 2012, *6-7 (Pa.Super. filed 3/21/14)
(unpublished memorandum) (footnote and citation to record omitted).
Moreover, this Court noted that Attorney Rudenstein participated in jury
selection on March 27, 2012; however, when the proceedings commenced on
March 28, 2012, the trial court acknowledged that another attorney, Attorney
Johnson, was present at the behest of Appellant’s family. See id. at 8.
However, Attorney Johnson had not accepted any payment from the family,
had not formally entered an appearance, had not met with Appellant, and was
not prepared for trial. See id. The trial court provided a one-hour recess so
that Attorney Johnson could speak with Attorney Rudenstein and Appellant in
order to permit further discussion regarding the plea offer; however, upon
expiration of the one-hour recess, and with Appellant’s continued insistence
he wanted to be tried by a jury, the trial court denied Appellant’s request for
a continuance. This Court concluded on appeal that the trial court properly
denied Appellant’s eleventh-hour request for a continuance since the request
served to “unreasonably clog the machinery of justice or hamper and delay
the state’s efforts to effectively administer justice.” See id. at 10 (quotation
marks and quotation omitted).
- 16 -
J-S72044-17
Based on the aforementioned, we conclude Prysock is distinguishable
from the case sub judice, and thus, appellate counsel would not have
succeeded on appeal with the citation and discussion thereof. Accordingly,
appellate counsel was not ineffective in failing to cite to this authority in
support of Appellant’s issue on direct appeal. See Koehler, 614 Pa. 159, 363
A.3d at 142 (“To succeed on a stand-alone claim of appellate counsel’s
ineffectiveness, a PCRA petitioner must demonstrate that appellate counsel
was ineffective in the manner by which he litigated the claim on appeal.”).
In his next issue, Appellant contends trial counsel was ineffective in
failing to request a mistrial in response to prosecutorial misconduct occurring
during the prosecutor’s closing argument to the jury. We conclude no relief
is due.
In support of his argument, Appellant cites to the following portion of
the prosecutor’s closing argument:
[Appellant] acted as her judge, her jury, and her executioner and
a self-proclaimed abortionist of that baby, because he shot her in
the head, the baby died, too.
N.T., 3/30/12, at 52.
Our review of the certified record reveals that trial counsel immediately
objected to the prosecutor’s statement; however, the trial court overruled the
objection. Id. at 53. Moreover, and contrary to Appellant’s mistaken
assertion, trial counsel specifically requested a mistrial due to the prosecutor’s
statement. Id. at 82. The trial court denied the request for a mistrial, but
- 17 -
J-S72044-17
indicated it planned to give a curative instruction. Id. at 82-84. Thereafter,
the trial court gave the following curative instruction:
[D]uring her closing argument, the District Attorney mentioned
the word “abortion.” This case is not about abortion. That was
inappropriate. This case is about the murder of an unborn child,
not abortion. So you will please disregard that.
Id. at 88.
As is evident, there is no merit to Appellant’s claim that trial counsel
failed to request a mistrial.5 Therefore, counsel cannot be deemed ineffective
on this basis.
In his next issue, Appellant contends direct appeal counsel was
ineffective in ensuring that the transcript related to jury selection was
transcribed and reviewed by him prior to the filing of a direct appeal on
Appellant’s behalf.
As the PCRA court concluded “[Appellant] has not advanced any claim
or provided any reasons as to why the notes would be required.” PCRA Court
Opinion, filed 6/28/17, at 11. In essence, the PCRA court concluded Appellant
failed to demonstrate how he was prejudiced by direct appeal counsel’s
omission. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 977
____________________________________________
5 To the extent Appellant contends trial counsel was ineffective in failing to
object to the cautionary instruction, we note that, aside from asserting the
trial court’s curative instruction did not remove the alleged “taint” from the
prosecutor’s statement, Appellant has not developed the argument further.
- 18 -
J-S72044-17
(1987) (holding a defendant raising claims of ineffective assistance of counsel
is required to show actual prejudice — that is, that counsel's conduct “had an
adverse effect on the outcome of the proceedings”). We agree and conclude
Appellant is not entitled to relief.6 Johnson, supra.
In his final issue, Appellant contends the PCRA court erred in dismissing
his petition without an evidentiary hearing.
“A PCRA petitioner is not entitled to an evidentiary hearing as a matter
of right, but only where the petition presents genuine issues of material fact.
A PCRA court’s decision denying a claim without a hearing may only be
reversed upon a finding of an abuse of discretion.” Commonwealth v.
Walker, 613 Pa. 601, 36 A.3d 1, 17 (2011) (citation omitted).
In the case sub judice, the PCRA court indicated it did not hold an
evidentiary hearing since there were no genuine issues of material fact in
controversy. See PCRA Court Opinion, filed 6/28/17, at 11-12. We find no
abuse of discretion. See Walker, supra.
For all of the foregoing reasons, we affirm the PCRA court’s dismissal of
Appellant’s first PCRA petition.
Affirmed.
____________________________________________
6 Appellant further asserts PCRA counsel was ineffective in arguing in his “no-
merit” letter that there was no merit to this contention. To the extent
Appellant preserved this issue below, we conclude he is not otherwise entitled
to relief. See Rykard, supra.
- 19 -
J-S72044-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
- 20 -