Com. v. Calhoun, T. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TODD V. CALHOUN,
Appellant No. 1205 MDA 2014
Appeal from the PCRA Order entered June 20, 2014,
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0006309-2009
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY ALLEN, J.: FILED JUNE 05, 2015
Todd V. Calhoun (“Appellant”) appeals from the order denying his
petition for post-conviction relief filed pursuant to the Post Conviction Relief
Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. In addition, PCRA counsel has filed
a petition to withdraw. We affirm.
We previously detailed the pertinent facts and procedural history as
follows:
On July 26, 2009, Officer Lisa Daniels of the York City
Police Department responded to a radio report of a
shooting in the area of Smyser Street in York County. On
arriving at the scene, Officer Daniels observed the victim,
Shawn Bailey, lying face down in the street, having
sustained three gunshot wounds. Witnesses to the
shooting reported to police that they saw three or four
men in a black Jeep and red Saturn shoot at the victim,
and identified Appellant as being among the shooters.
Police officers subsequently arrested and charged
Appellant with [aggravated assault and related] crimes.
The Commonwealth requested numerous continuances of
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trial which the trial court granted, and on July 30, 2010,
Appellant filed a motion pursuant to Pa.R.Crim.P. 600
seeking dismissal of the charges against him for failure of
the Commonwealth to bring him to trial within 365 days.
The trial court denied Appellant’s Rule 600 motion on
August 5, 2010. A jury trial commenced on August 9,
2010, and on August 11, 2010, the jury returned its guilty
verdict.
***
At trial, Diamond Bailey, the victim’s sister, testified
that at the time of the shooting, she was standing on
Smyser Street with the victim and saw four men, one of
whom was Appellant, on the street together near a red
two-door sedan and a black jeep. She testified that she
heard Appellant say “this is what we do”, and immediately
thereafter the victim was shot. Ms. Bailey testified that
she saw two of the men who were standing with Appellant
fire guns at the victim. While Ms. Bailey stated that she
did not actually see Appellant fire a gun at the victim, she
stated that she witnessed the shots being fired from the
group of men whom Appellant was with. Ms. Bailey
testified that after the shooting stopped, one of the men
came back and “picked up [the victim’s] hat, I guess like a
souvenir to show that they shot him, and took off with his
hat.”
Rachel Garner, a witness to the shooting, testified that
she was in her apartment when she heard Appellant and
the victim arguing. She then looked out of her window
and saw Appellant and the victim standing right in front of
each other, having a disagreement. She stated that
immediately following the argument, she heard gunfire and
saw the victim being shot at, though she did not know
precisely who fired the shots. She stated that after the
shooting began, she saw the victim fire a weapon at
Appellant.
Lachara Wintermeyers also testified at trial. Ms.
Wintermyers explained that Appellant is the father of her
son, and that prior to the shooting, she had been in a
relationship with the victim. She further testified that on
at least one occasion prior to the shooting, Appellant had
expressed disapproval of her relationship with the victim,
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and asked Ms. Wintermyers if she was going to make him
“fuck this nigga up” and/or “pop this nigga”, referring to
the victim. Ms. Wintermyers testified that on the day of
the shooting, Appellant had called the victim and told him
to “leave Lachara alone.”
The victim testified at trial that on the date of the
incident, he was walking towards Smyser Street when he
received a telephone call from Appellant in which Appellant
informed the victim that he was waiting for him on Smyser
Street. On arrival at the scene, the victim observed
Appellant standing in the middle of the street. Two other
unidentified men then drove up and stepped into the
street. Appellant made eye contact with the two other
men, who split up on either side of the street and began
walking towards the victim. Appellant and the victim
began to argue, after which Appellant said, “this is what
we do” and immediately thereafter, the victim heard
gunshots being fired at him. The victim testified that he
saw Appellant’s companions shoot at him, but did not
know whether or not Appellant fired a weapon at him. The
victim further testified that prior to the shooting, he
received threats from Appellant warning him to stay away
from Ms. Wintermyers.
Detective George Ripley of the York City Police testified
that he interviewed Appellant on August 11, 2009.
Detective Ripley testified that during the interview,
Appellant reported that on the date of the incident he
telephoned the victim and told him to “leave Lachara
alone.” Later that afternoon, Appellant again called the
victim, and then, along with a companion named “C-
Murder”, drove to Symser Street, in a red Saturn, to meet
the victim. Appellant stated to [Detective] Ripley that
prior to arriving on Smyser Street, he made a telephone
call to an individual named Brad [Markle], informed Mr.
[Markle] that he was going to meet the victim on Smyser
Street, and asked Mr. [Markle] to “get his back.” Appellant
stated that on the way to Smyser Street he “took off his
earrings and his hat, in preparation to fight” with the
victim, but that upon arriving at Smyser Street, the victim
appeared with a weapon and shot at Appellant. Appellant
stated that during the time the shooting occurred, he did
not know that Mr. [Markle] was firing a weapon. Appellant
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additionally denied having a gun or shooting a gun on the
date of the incident.
Commonwealth v. Calhoun, 38 A.3d 92 (Pa. Super. 2011), unpublished
memorandum at 1-2; 8-11 (footnote and citations omitted).
Following a two-day trial, on August 11, 2010, a jury convicted
Appellant on all charges. Thereafter, Appellant filed post-trial motions that
the trial court denied on November 24, 2010. That same day, the trial court
sentenced Appellant to an aggregate term of 5½ to 11 years of
imprisonment. Appellant filed a timely appeal to this Court. On November
4, 2011, we rejected Appellant’s substantive claims and affirmed his
judgment of sentence. Calhoun, supra. On September 17, 2012, our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Calhoun, 53 A.3d 756 (Pa. 2012).
On September 9, 2013, Appellant filed a pro se PCRA petition, and the
PCRA court appointed counsel to represent him. PCRA counsel filed an
amended PCRA petition on November 6, 2013, in which he claimed that trial
counsel was ineffective for failing to call Brad Markle as a defense witness.
The Commonwealth filed its response on April 16, 2014. On June 20, 2014,
the PCRA court held an evidentiary hearing at which Mr. Markle, Appellant,
and trial counsel testified. At the conclusion of the PCRA hearing, the PCRA
court entered an order denying Appellant’s amended petition. This timely
appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
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In lieu of an advocate’s brief, Appellant’s counsel has filed a purported
Anders1 brief and a petition to withdraw. Compliance with Anders applies
to counsel who seeks to withdraw from representation on direct appeal.
Anders imposes stricter requirements than those imposed when counsel
seeks to withdraw during the post-conviction process pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
2004). Thus, we will assess counsel’s assertion that the issues Appellant
wishes to raise have no merit under a Turner/Finley analysis.
This Court has recently explained:
The Turner/Finley decisions provide the manner for
[PCRA counsel] to withdraw from representation. The
holdings of those cases mandate an independent review of
the record by competent counsel before a PCRA court or
appellate court can authorize an attorney’s withdrawal. The
necessary independent review requires counsel to file a “no-
merit” letter detailing the nature and extent of his review
and list each issue the petitioner wishes to have examined,
explaining why those issues are meritless. The PCRA court,
or an appellate court if the no-merit letter is filed before it,
see Turner, supra, then must conduct its own independent
evaluation of the record and agree with counsel that the
petition is without merit. . . .
[T]his Court [has] imposed additional requirements on
counsel that closely track the procedure for withdrawing on
direct appeal. . . . [C]ounsel is required to
contemporaneously serve upon his [or her] client his [or
her] no-merit letter and application to withdraw along with
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967).
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a statement that if the court granted counsel’s withdrawal
request, the client may proceed pro se or with a privately
retained attorney. . . .
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation
omitted).
Here, counsel has substantially complied with the mandates of Turner
and Finley, as summarized in Reed, supra. “Accordingly, we will proceed
with our independent review of the questions presented to determine if
counsel correctly concluded that the issues raised had no merit.” Reed, 107
A.3d at 141.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011(Pa. Super. 2001).
In his sole claim raised on appeal, Appellant maintains that trial
counsel was ineffective for failing to call Mr. Markle to testify as a defense
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witness. See Appellant’s Brief at 4. In order to establish that trial counsel
was ineffective for failing to investigate and/or call a witness at trial, a PCRA
petitioner must demonstrate that:
(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the
witness was prepared to cooperate and would have testified
on appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation
omitted).
Here, the PCRA court summarized the testimony from the evidentiary
hearing as follows:
At the PCRA hearing in this case, trial counsel []
testified that one of the reasons why he did not call
Bradley Markle to testify was that Mr. Markle’s statement
totally contradicted what [Appellant] told Detective Ripley.
Mr. Markle’s notarized Affidavit presented to the [PCRA]
Court in support of the PCRA Petition (Attached to the
Petition as “Exhibit A”), as well as his testimony at the
PCRA hearing, indicates that Mr. Markle just happened to
see [Appellant] in another vehicle while driving down the
street, tried to get [Appellant] to stop in the hopes of
collecting some money that was owed to Mr. Markle by
[Appellant], but before Mr. Markle could talk with
[Appellant], [the victim] approached holding a gun and
started firing at [Appellant]. Mr. Markle further testified
that [Appellant] did not call him to meet for a fight or an
altercation with another person. This version of events by
Mr. Markle contradicts not only [Appellant’s] statements to
Detective Ripley, but also contradicts the version of events
Mr. Markle, as a co-defendant, gave when he pled guilty to
Recklessly Endangering Another Person before the
Honorable Stephen P. Linebaugh.
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Trial Court Opinion, 10/10/14, at 2-3 (citations to notes of testimony
omitted).
The PCRA court then quoted from Mr. Markle’s guilty plea colloquy,
noting that Mr. Markle admitted that he was “aware that some type of
confrontation was going to occur and that eventually shots were fired.” Id.
at 3 (quoting N.T., 7/12/10, at 6). During the colloquy, Mr. Markle further
admitted that he “got a phone call about another case, and I went to help a
friend out.” Id. The PCRA court attached a copy of Mr. Markle’s guilty plea
colloquy to its Pa.R.A.P. 1925(a) opinion.
The PCRA court then concluded:
This version of events as told by Mr. Markle is consistent
with the statement [Appellant] made to Detective Ripley
on August 11, 2009. During this interview with Detective
Ripley, [Appellant] stated that prior to the shooting
incident, he called Mr. Markle and advised him where he
was going, that he was going to see this guy, or see the
dude, and that he asked Mr. Markle “to get his back.”
However, the version of events as told by Mr. Markle
under oath during his guilty plea was inconsistent with
the Affidavit in support of [Appellant’s] PCRA and his
testimony at the PCRA hearing. The [PCRA] Court
questioned Mr. Markle at the hearing about this
inconsistency, and Mr. Markle’s responses in that regard
did nothing to explain why his versions differed.
This guilty plea under oath by Mr. Markle to Recklessly
Endangering Another Person was another reason [trial
counsel] gave at the hearing for his decision not to call Mr.
Markle to testify. Specifically, if [trial counsel] had called
Mr. Markle to testify, he was concerned that the
Commonwealth would cross-examine Mr. Markle about
why, if this is self-defense, did he plead guilty to anything.
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In addition, [trial counsel] testified that he was
concerned that the jury would not necessarily believe that
Bradley Markle just happened to get [to the scene] at the
precise moment when [the victim] came out firing,
indicating that it would be quite a coincidence, especially
given [Appellant’s] statement to Detective Ripley.
Given that Mr. Markle’s Affidavit in support of
[Appellant’s] PCRA and his testimony at the PCRA hearing
contradict both his guilty plea under oath and
[Appellant’s] statement to Detective Ripley, calling Mr.
Markle as a witness at [Appellant’s] trial was not only not
necessary to avoid prejudice, but the likelihood was great
that it would have been prejudicial to [Appellant]. As a
result, [trial counsel] was not ineffective for not calling
Bradley [Markle] to testify.
PCRA Court Opinion, 10/10/14, 3-5 (citations to notes of testimony
omitted).
Our review of the certified record supports the PCRA court’s
conclusion. In particular, we note the following exchange between PCRA
counsel and trial counsel:
Q. Why was Mr. Markle initially - - why did you wish to
have him testify as a witness?
A. He may have been good for us if they had not
introduced [Appellant’s] statement that he gave to
Detective Ripley, that’s one reason, because [Mr. Markle’s
proposed testimony] totally contradicted what [Appellant]
had told Detective Ripley.
Number two, you know, I – the way the trial went, I
thought it went pretty well. I mean, you know, when you
asked me the question, I will tell you why I didn’t call [Mr.]
Markle, but - -
[PCRA COUNSEL]: I’m getting - - but - -
THE COURT: Well, why don’t we just ask the question.
Why didn’t you call Bradley Markle?
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[PCRA COUNSEL]: I was trying to first get into why he
thought his testimony would be beneficial with regards to
the charges, but I think he just did that.
BY [PCRA COUNSEL]:
Q. So why did you not call Mr. Markle?
A. Yeah, I mean, I had him available because, you know, I
didn’t know exactly - - well, I thought I knew what was
going to happen at trial, but, you know, sometimes things
happen.
The reason I didn’t call Brad Markle is, as I just said,
number one, things appeared to be going pretty well for us
as far as any kind of self-defense claim. I didn’t think [the
victim] came off particularly well, now one of the other
witnesses. I don’t remember her name. Again,
[Appellant] gave a - - Mr. Markle testified here today that
it was just happenstance that he ran into [Appellant] down
at the area where this occurred. What [Appellant] told
Detective Ripley is that [Appellant] had called Brad Markle
and told Brad Markle or requested him to come down to
that location to get his back, that he was going to see
some dude, and he wanted Brad Markle there to get his
back.
If I would have introduced - - well, if I put [Mr.] Markle
up, that’s totally going to contradict what my client said,
you know, and it did come out through a statement to
Ripley exactly what [Appellant] said, that [Appellant] didn’t
do anything, that [Appellant] got there and [the victim]
came out firing, and that [Appellant] didn’t have a gun so
he had exculpatory information in his statement. That way
I didn’t have to put [Appellant] on the stand to testify at
the trial.
But again, [Mr. Markle’s proposed testimony] would
have totally contradicted what [Appellant] said. You know,
quite frankly, I was concerned the jury would not
necessarily believe that Brad Markle just happens to get
there at the precise moment when [the victim] comes out
firing. That’s quite a coincidence especially given
[Appellant’s] statement. And I think it was Lachara
Wintermeyers who testified at trial, who was with
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[Appellant], who, if I recall said that he called or was
making phone calls on her phone.
You know, [the prosecutor’s] theory of the cases was []
[Appellant] indicated he didn’t have a gun. His theory was
he didn’t really care if [Appellant] had a gun or not, that
he orchestrated, [Mr.] Markle, the third guy and him to be
there knowing there was going to be a confrontation, and,
therefore, accomplice liability, [Appellant] should be found
guilty anyway whether or not he had a gun.
You know, lastly, with [Mr.] Markle, he pled guilty to
recklessly endangering. [The PCRA court] referenced [Mr.
Markle’s] guilty plea. I had a concern too that [the
prosecutor] would confront [Mr. Markle], well, if this is all
self-defense, then why did you plead to anything; so, you
know, I made the decision based upon those factors that I
just wasn’t going to call Brad Markle.
N.T., 6/20/15, at 44-47.
Upon cross-examination, the following exchange occurred between the
assistant district attorney and trial counsel:
Q. Just to reiterate some things. Is it accurate to say that
the reason you didn’t call Bradley Markle is he would have
undercut your case as you were going to be arguing?
A. Yeah, I guess that’s one way to put it.
Id. at 49.
The PCRA court credited the testimony of trial counsel over the
testimony and other allegations made by Appellant at the evidentiary
hearing. We cannot disturb this determination. See Commonwealth v.
Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility
determinations are solely within the province of the PCRA court). Moreover,
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given the PCRA court’s credibility determinations, Appellant cannot establish
that the absence of Mr. Markle’s testimony prejudiced him. Hall, supra.In sum, we have reviewed the record, including the notes of testimony
from the PCRA hearing, and agree with PCRA counsel’s determination that
Appellant’s ineffectiveness claim is without merit. We therefore affirm the
PCRA court’s denial of Appellant’s petition for post-conviction relief, and
grant counsel’s petition to withdraw.
Order affirmed. Petition to Withdraw granted.
Judge Lazarus joins the Memorandum.
Judge Bowes files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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