Com. v. Rucker, S. ( 2021 )

J-S53010-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMIRAH RUCKER :
:
Appellant : No. 1201 EDA 2020
Appeal from the PCRA Order Entered May 11, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004781-2017
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: MAY 21, 2021
Appellant, Shamirah Rucker, appeals pro se from the order dismissing
her petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the underlying facts of this case as follows:
The Affidavit of Probable Cause that served as the factual basis
for the plea states that on the evening of April 17, 2017[,] police
officers responded to a report of a stabbing. Upon arrival[,] the
victim was found with three stab wounds to her chest.
[Appellant’s] father was at the scene providing aide [sic] to the
victim. He reported that it was [Appellant] who stabbed the
victim. The victim also identified [Appellant] as her assailant.
[Appellant] admitted to the officers that she had stabbed the
victim.
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* Retired Senior Judge assigned to the Superior Court.
J-S53010-20
PCRA Court Opinion, 7/7/20, at 2. The PCRA court offered the following
recitation of the procedural history of this matter:
[Appellant] entered a negotiated guilty plea to aggravated
assault and possessing an instrument of crime on February 16,
2018. After a colloquy[, Appellant’s] guilty plea was accepted as
knowing, voluntary and intelligent. [Appellant] executed a written
Guilty Plea Statement Form comprised of twenty-nine paragraphs
wherein inter alia, she acknowledged the rights that she was
waiving and confirmed that she was not forced or pressured into
entering the guilty plea. She initialed each of the twenty-[nine]
paragraphs set forth therein and signed the form to confirm that
she understood and agreed with each provision that is set forth in
the form. In [o]pen [c]ourt [Appellant] stated that she had
sufficient time to review the form, that there was nothing in it that
she did not understand and that she had no questions for either
the [c]ourt or her attorney. N.T. [2/16/18] pp. 6-7. At the
conclusion of the colloquy[,] the guilty plea was accepted as
knowing, voluntary and intelligent.
In accordance with the terms of the plea[, Appellant] was
sentenced to an aggregate term of seventy-two to 144 months of
incarceration to be followed by five years of probation. This
sentence falls within the statutory limits for each offense and falls
within the Standard Range recommended by the Pennsylvania
Commission on Sentencing.
* * *
[Appellant] did not pursue her right to a direct appeal. On
February 25, 2019[, Appellant] filed a pro se [PCRA] petition.1
[Appellant] alleged that she accepted the plea believing that she
would not serve the minimum sentence imposed and was
“unaware of how harsh the deal was.” She claimed that the
sentence imposed exceeds the Sentencing Guidelines and that she
was unaware of all the terms she was agreeing to because she did
not have her glasses at the time.
1 Counsel was appointed. Appointed counsel filed an
application to withdraw along with a “no–merit”
letter[,] and he was granted leave to withdraw on
March 16, 2020.
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After due Notice the petition was dismissed.2 [Appellant]
was Ordered to file a Concise Statement of Errors Complained of
on Appeal. [Appellant] has complied with the [c]ourt’s directive
and has listed several claims that were not raised in the PCRA
petition that is before the [c]ourt. …
2 The PCRA petition was dismissed on April 28, 2020.
After an Order was entered dismissing the petition the
[c]ourt received a response to the Notice of Intent to
Dismiss that was entered on March 16, 2020. The
April 28, 2020 Order was vacated to allow the [c]ourt
to consider [Appellant’s] untimely response. The
PCRA petition was then dismissed on May 11, 2020.
It is from this Order that [Appellant] appeals.
PCRA Court Opinion, 7/7/20, at 1-3.
Appellant presents the following issues for our review:
A. Did the PCRA Court err in the denial and dismissal of Appellant’s
Post Conviction Relief Act Petition in regards to ineffective
assistance of counsel?
B. Did the PCRA Court err in not finding Appellant’s guilty plea was
not knowingly and intelligently entered into?
Appellant’s Brief at 4.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
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support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
In each of her issues, Appellant raises claims challenging the effective
assistance of prior counsel. Our Supreme Court has long stated that in order
to succeed on a claim of ineffective assistance of counsel, an appellant must
demonstrate (1) that the underlying claim is of arguable merit; (2) that
counsel’s performance lacked a reasonable basis; and (3) that the
ineffectiveness of counsel caused the appellant prejudice. Commonwealth
v. Pierce, 786 A.2d 203, 213 (Pa. 2001).
We observe that claims of ineffective assistance of counsel are not self-
proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). It is
presumed that the petitioner’s counsel was effective, unless the petitioner
proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa.
1999). “[A] post-conviction petitioner must, at a minimum, present
argumentation relative to each layer of ineffective assistance, on all three
prongs of the ineffectiveness standard….” Commonwealth v. D’Amato, 856
A.2d 806, 812 (Pa. 2004).
Pursuant to the first prong, we note that where an appellant is not
entitled to relief on the underlying claim upon which his ineffectiveness claim
is premised, he is not entitled to relief with regard to his ineffectiveness claim.
Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). In short,
counsel cannot be deemed ineffective for failing to pursue a meritless claim.
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Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
Moreover, with regard to the second prong, we have reiterated that trial
counsel’s approach must be “so unreasonable that no competent lawyer would
have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa.
Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).
Our Supreme Court has discussed “reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial counsel’s
decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.
1967)) (emphasis in original).
In addition, we are mindful that prejudice requires proof that there is a
reasonable probability that but-for counsel’s error, the outcome of the
proceeding would have been different. Pierce, 786 A.2d at 213. “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,
when it is clear that a petitioner has failed to meet the prejudice prong of an
ineffective-assistance-of-counsel claim, the claim may be disposed of on that
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basis alone, without a determination of whether the first two prongs have been
met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).
Appellant first argues that the PCRA court erred in denying her PCRA
petition that raised challenges of ineffective assistance of trial counsel.
Appellant’s Brief at 8-10. Appellant’s argument with regard to this issue
presents a litany of vague allegations of trial counsel error. Among other
points, Appellant claims that trial counsel “failed to file for [Mental Health
Court] violating [Appellant’s] wishes … .” Id. at 9. Appellant also claims trial
counsel “was ineffective for failing to raise [Appellant’s] mental health
history … .” Id. In addition, Appellant asserts that trial counsel was
ineffective for: failing to stay in contact with Appellant and her father; refusing
to petition to withdraw Appellant’s plea; failing to offer adequate assistance
or develop a defense; improperly communicating with Appellant; and failing
to interview and call witnesses or present mitigating evidence at sentencing.
Id. at 9-10.
Upon review of Appellant’s brief, we are constrained to conclude that
she has not developed any of the three prongs necessary to establish an
ineffectiveness claim. Indeed, Appellant failed to develop her claims of
ineffective assistance beyond the bald allegations set forth above. Aside from
the allegations that presume there is merit to the underlying claim, Appellant
presented no argument concerning whether trial counsel had a reasonable
basis for her inaction, or whether Appellant suffered prejudice. Again, claims
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of ineffective assistance of counsel are not self-proving. Wharton, 811 A.2d
at 986. Accordingly, we conclude that Appellant has failed to establish her
claim that trial counsel was ineffective in this regard. Hence, we discern no
error on the part of the PCRA court in denying relief on the basis of this claim
of ineffective assistance.1
In her second issue, Appellant argues that the PCRA court erred in
concluding that Appellant’s guilty plea was knowingly and intelligently
entered. Appellant’s Brief at 11-13. Appellant contends that she entered her
plea on the advice of counsel, and that she was incompetent to make any such
decision in light of her mental-health issues. Id. at 11-12.
Before we address the merits of Appellant’s issue, we must determine
whether the claim presented has been properly preserved for our
consideration on appeal. Our Courts have consistently ruled that where a
lower court directs a defendant to file a concise statement pursuant to
Pennsylvania Rule of Appellate Procedure 1925, any issues not raised in that
statement shall be waived. Commonwealth v. Bullock, 948 A.2d 818, 823
____________________________________________
1 We observe that Appellant is proceeding in this appeal without the benefit
of legal representation. However, Appellant is not entitled to any particular
advantage because she lacks legal training. As the courts of this
Commonwealth have long explained, any layperson choosing to represent
himself in a legal proceeding must, to some reasonable extent, assume the
risk that his lack of expertise and legal training will prove his undoing. See
Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996)
(observing that pro se status does not provide benefit to litigant or compel
court to become counsel for a party).
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(Pa. Super. 2008) (citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.
1998)). In Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), our
Supreme Court reaffirmed its holding in Lord and stated: “In Lord, however,
this Court eliminated any aspect of discretion and established a bright-line
rule for waiver under Rule 1925 …. Thus, waiver under Rule 1925 is
automatic.” See also Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa.
Super. 2008) (noting that Lord “requires a finding of waiver whenever an
appellant fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b)
statement”).
We are mindful that Rule 1925 is intended to aid trial judges in
identifying and focusing upon those issues that the parties plan to raise on
appeal. The absence of a trial court opinion addressing a particular claim
poses a substantial impediment to meaningful and effective appellate review.
Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa. Super. 2002). Rule 1925
is thus a crucial component of the appellate process. Lemon, 804 A.2d at 37.
“When a court has to guess what issues an appellant is appealing, that is not
enough for meaningful review.” Commonwealth v. Dowling, 778 A.2d 683,
686 (Pa. Super. 2001). In addition, claims that are not raised before the trial
court are waived. See Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.
Super. 2000) (stating that “[a] claim which has not been raised before the
trial court cannot be raised for the first time on appeal.”); Commonwealth
v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006) (citing Commonwealth v.
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Gordon, 528 A.2d 631, 638 (Pa. Super. 1987) (reiterating that “[a] theory of
error different from that presented to the trial jurist is waived on appeal, even
if both theories support the same basic allegation of error which gives rise to
the claim for relief.”)). Moreover, “[e]ven if the trial court correctly guesses
the issues [a]ppellants raise[] on appeal and writes an opinion pursuant to
that supposition the issues [are] still waived.” Commonwealth v. Heggins,
809 A.2d 908, 911 (Pa. Super. 2002).
Our review of the certified record reflects that on June 18, 2020, the
PCRA court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)
statement within twenty-one days. The record further reveals that Appellant
filed her Rule 1925(b) statement on June 29, 2020. Appellant’s Rule 1925(b)
statement contained a total of seven issues. Pa.R.A.P. 1925(b) Statement,
6/29/20, at 1-2. However, the Rule 1925(b) statement did not include the
specific issue Appellant currently presents to this Court, i.e., that the PCRA
court erred in finding that Appellant’s guilty plea was knowingly and
intelligently entered. Id. Accordingly, we are constrained to conclude that
this issue is waived.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/21
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