Com. v. Griffith, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD GRIFFITH :
:
Appellant : No. 1916 EDA 2017
Appeal from the PCRA Order May 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004784-2011
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 28, 2018
Donald Griffith (“Appellant”) appeals pro se from the order denying his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541–9546, without a hearing. We affirm.
The PCRA court summarized the history of this case as follows:
A jury convicted [Appellant] of first degree murder,
possession of an instrument of crime (PIC) and violations of the
Uniform Firearms Act (VUFA) on April 19, 2013. On that same
day, [Appellant] was sentenced to life imprisonment without the
possibility of parole. [Appellant] filed a post-[sentence] motion
on April 23, 2013. The motion was denied on September 13,
2013. On September 23, 2013, [Appellant] filed a notice of
appeal, and was ordered on September 24, 2013 to file a
statement of matters complained of on appeal. Said statement
was filed on October 15, 2013. On January 17, 2014, this court
issued an opinion. On October 6, 2014, the Superior Court
affirmed the judgment of sentence. [Commonwealth v.
Griffith, 108 A.3d 103, 2768 EDA 2013 (Pa. Super. filed October
6, 2014) (unpublished memorandum).]
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On August 6, 2015, [Appellant] filed a pro se Post Conviction
Relief Act (PCRA) petition. Thereafter, on April 10, 2017,
appointed counsel filed a “no merit” letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) and
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988).
This court took the “no merit” letter under advisement, and issued
a notice of intent to dismiss the PCRA petition pursuant to
Pennsylvania Rule of Criminal Procedure 907 on April 24, 2017.
On May 10, 2017, [Appellant] filed a response to counsel’s “no
merit” letter. On May 30, 2017, this court issued an order formally
dismissing [Appellant’s] PCRA petition [and permitting counsel to
withdraw]. [Appellant] filed a notice of appeal on June 5, 2017.
PCRA Court Opinion, 10/19/17, at 1–2.
On appeal, Appellant presents the following questions for our review:
I. Did the PCRA Court err by failing to hold an evidentiary
hearing to develop Appellant’s claim that missing portions
of his trial transcripts prevented him from adequate
appellate review?
II. Was trial counsel ineffective for advising Appellant that
material eyewitnesses did not need to be called to testify?
Appellant’s Brief at 4.1
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
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1 As the facts of the crime are not germane to the issues raised, we do not
repeat them here. We note that Attorney Thomas L. McGill, Jr. (“trial
counsel”) represented Appellant at trial and on direct review.
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free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). We will not disturb the PCRA court’s findings unless there is no support
for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
Appellant first complains that because the PCRA court found waiver, it
did not conduct an evidentiary hearing to develop Appellant’s claim that
missing portions of his trial transcript resulted in a meaningless appeal.
Appellant’s Brief at 7. We reiterate that there is no absolute right to an
evidentiary hearing. Commonwealth v. Springer, 961 A.2d 1262, 1264
(Pa. Super. 2008). “[T]he PCRA court has discretion to dismiss a petition
without a hearing when the court is satisfied ‘there are no genuine issues
concerning any material fact, the defendant is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by further
proceedings.’” Commonwealth v. Cousar, 154 A.3d 287, 297 (Pa. 2017)
(citing Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013)). “[S]uch a
decision is within the discretion of the PCRA court and will not be overturned
absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015). On appeal, we examine the issues raised in light of the record
“to determine whether the PCRA court erred in concluding that there were no
genuine issues of material fact and denying relief without an evidentiary
hearing.” Springer, 961 A.2d at 1264.
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Appellant desired an evidentiary hearing to develop his claims of
ineffective assistance of counsel (“IAC”). When considering an IAC claim, we
presume that counsel provided effective representation unless the PCRA
petitioner pleads and proves that: (1) the underlying claim is of arguable
merit; (2) counsel had no reasonable basis for his action or inaction; and (3)
petitioner was prejudiced by counsel’s action or omission. Commonwealth
v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth
v. Pierce, 527 A.2d 973, 975–976 (Pa. 1987)). “In order to meet the
prejudice prong of the ineffectiveness standard, a defendant must show that
there is a ‘reasonable probability that but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’” Commonwealth v.
Reed, 42 A.3d 314, 319 (Pa. Super. 2012). An IAC claim will fail if the
petitioner’s evidence fails to meet any one of the three prongs.
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). Because courts
must presume that counsel was effective, the burden of proving
ineffectiveness rests with the petitioner. Commonwealth v. Montalvo, 114
A.3d 401, 410 (Pa. 2015). “In accord with these well-established criteria for
review, [an appellant] must set forth and individually discuss substantively
each prong of the Pierce test.” Commonwealth v. Fitzgerald, 979 A.2d
908, 910 (Pa. Super. 2009).
Contesting the PCRA court’s finding of waiver, Appellant asserts that he
“did meaningfully discuss each prong of [trial] counsel’s ineffectiveness” in
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failing to raise a challenge to objectionable portions of the prosecutor’s closing
arguments.2 Appellant’s Brief at 7 (citing Objection to Counsel’s Finley Letter,
5/10/17). Additionally, Appellant contends that PCRA counsel failed “to review
the record when Appellant raised the claim in an initial pro se petition” and
failed “to exercise reasonable diligence” by not raising a claim of trial counsel’s
ineffectiveness. Id. at 8.
In his no-merit letter, PCRA counsel advised that Appellant could have
raised the incomplete-transcript issue on direct appeal, but did not; therefore,
Appellant waived it. Letter of No Merit Pursuant to Commonwealth v. Finley,
4/10/17, at 12. Additionally, PCRA counsel opined that Appellant:
does not provide any details regarding what those prejudicial
statements were.[3] Further, [t]he trial record does not indicate
that [trial counsel] (who is presumed to be effective) objected to
or placed any alleged prejudicial statements on the record. As a
result, this allegation of ineffective assistance of counsel has been
waived for lack of development.
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2 According to Appellant, the prosecutor “comment[ed] upon his opinion of
what Appellant’s state of mind was during commission of the offense.”
Appellant’s Brief at 9.
3 PCRA counsel described Appellant’s claim as follows:
The Petitioner claims that the Prosecutor “referred to Petitioner’s
state of mind several times in his closing argument with prejudicial
remarks.” PCRA, p. 9 (unnumbered) (8/6/2015). The Petitioner
further claims that the Prosecutor made “repeated prejudicial
comments about Petitioner’s mental state [which] inflamed the
jury’s determination such that they were unable to render a true
verdict.” PCRA, p. 10.
Letter of No Merit Pursuant to Commonwealth v. Finley, 4/10/17, at n.9.
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Id. at 13.
The PCRA court addressed Appellant’s first issue as follows:
[Appellant] contends that his “appeal was meaningless because
the prosecutor made prejudicial statements during his closing
argument and the arguments were not transcribed” by the court
reporter. As an initial matter, this contention has been waived
since it could have been, but was not litigated on direct appeal.
42 Pa.C.S.A. § 9544 provides that “an issue is waived if the
petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state post-
conviction proceeding.” Additionally, if an appellant fails to
meaningfully discuss each of the three ineffectiveness prongs, “he
is not entitled to relief, and we are constrained to find such claims
waived for lack of development.” Commonwealth v. Fears, 86
A.3d 795, 804 (Pa. 2014) (citing Commonwealth v. Steele, 961
A.2d 786, 797 (Pa. 2008)). [Appellant] argues that he was
prejudiced by the prosecutor’s comments but fails to identify the
allegedly prejudicial comments. Thus, this undeveloped
ineffective assistance of counsel claim is meritless.
PCRA Court Opinion, 10/19/17, at 6–7.
Upon review, we agree with the PCRA court that Appellant waived his
first issue. Appellant did not raise this issue on direct appeal. Arguably, his
failure to do so is excused because he is alleging ineffective assistance of
counsel. See Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998)
(“[A] PCRA petitioner’s waiver will only be excused upon a demonstration of
ineffectiveness of counsel in waiving the issue.”). However, when Appellant
resurrected his challenge to the prosecutor’s comments in his pro se PCRA
petition, he did not frame it as an IAC claim. PCRA Petition, 8/6/15, at ¶ 9;
42 Pa.C.S. § 9543(a)(2)(iii). In fact, Appellant first raised an IAC claim based
on the prosecutor’s comments in his response to counsel’s “no merit” letter;
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however, he did not raise the IAC claim against trial counsel, but against PCRA
counsel, arguing that PCRA counsel should have filed an amended petition that
raised trial counsel’s ineffectiveness. Objection to Counsel’s Finley Letter,
5/10/17, at ¶¶ 6–8.
Moreover, Appellant failed to develop an IAC claim against trial counsel
and PCRA counsel in his appellate brief. Pa.R.A.P. 2119(a). He does not
discuss or apply the standard for ineffectiveness claims, and he fails to develop
an argument concerning the Pierce factors. “Such an undeveloped argument,
which fails to meaningfully discuss and apply the standard governing the
review of ineffectiveness claims, simply does not satisfy Appellant’s burden of
establishing that he is entitled to any relief.” Commonwealth v. Bracey,
795 A.2d 935, 940 n.4 (Pa. 2001). Consequently, Appellant’s current IAC
claim against trial counsel is waived, and his derivative claim of PCRA counsel
ineffectiveness fails. See Commonwealth v. Hall, 872 A.2d 1177, 1184 (Pa.
2005) (explaining that failure on the part of the petitioner to develop all three
Pierce prongs will result in a failure to “establish the arguable merit prong of
the claim of subsequent counsels’ ineffectiveness”).
Given our conclusion that Appellant waived his first issue, we discern no
abuse of the PCRA court’s discretion in denying relief without an evidentiary
hearing, as there were no genuine issues of material fact. Cousar, 154 A.3d
at 297. Appellant’s contrary assertion fails.
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In his second issue, Appellant again assails trial counsel’s representation
as ineffective. Appellant’s Brief at 11. According to Appellant, trial counsel
lacked a reasonable strategic basis “for counseling Appellant to agree to not
call witnesses who’s [sic] testimony would have corroborated Appellants [sic]”
claim that he acted in self-defense. Id. at 12.4 Appellant also asserts that
“there exists a reasonable probability that, but for [trial counsel’s] action, the
jury would have been left with reasonable doubt as to Appellant’s culpability
for 1st Degree murder[;] a conviction of a lesser degree of murder would have
been more likely to occur had the jury heard the proffered testimony.” Id. at
13.
In his no-merit letter, PCRA counsel explained that, although the
witness, Andrew Taylor, was available to testify, Appellant and trial counsel
“made a tactical and strategic decision not to call Mr. Taylor as a witness.”
Letter of No Merit Pursuant to Commonwealth v. Finley, 4/10/17, at 9.
Additionally, PCRA counsel detailed why Appellant’s “argument of ineffective
assistance of counsel for failing to call Mr. Taylor has no arguable merit nor
was there a reasonable probability that the outcome of the proceedings would
have been different had Mr. Taylor testified.” Id. at 9–10.
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4 At trial, the defense considered calling two witnesses, Andrew Taylor and
Angel Ortega. N.T., 4/17/13, at 69. On appeal, Appellant argues that trial
counsel was ineffective for failing to call Andrew Taylor as a witness.
Appellant’s Brief at 12. Consequently, any challenge to the absence of Angel
Ortega’s testimony is waived.
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The PCRA court addressed Appellant’s second claim of error as follows:
[Appellant] claims that counsel was ineffective for failing to
investigate and subpoena an eyewitness who made a statement
to the police that [Appellant] attempted to back away from the
witness and victim. To establish counsel’s ineffectiveness for
failure to call a witness, [Appellant] must show that:
(1) the witness existed; (2) the witness was available;
(3) counsel was informed of the existence of the
witness or counsel should otherwise have known of
the witness; (4) the witness was prepared to
cooperate and testify for Appellant at trial; and (5) the
absence of the testimony prejudiced Appellant so as
to deny him a fair trial. A defendant must establish
prejudice by demonstrating that he was denied a fair
trial because of the absence of the testimony of the
proposed witness. Further, ineffectiveness for failing
to call a witness will not be found where a defendant
fails to provide affidavits from the alleged witnesses
indicating availability and willingness to cooperate
with the defense.
Commonwealth v. O’Bidos, 849 A[.]2d 243, 249 (Pa. Super.
2004)[,] appeal denied, 860 A[.]2d 123 (Pa. 2004) (quoting
Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super 2002).
In order to demonstrate prejudice, a petitioner must show
how the uncalled witnesses’ testimony would have been beneficial
under the circumstances of the case. Thus, counsel will not be
found ineffective for failing to call a witness unless the petitioner
can demonstrate that the witness’s statement would have been
helpful to the defendant. A failure to call a witness is not per se
ineffective assistance of counsel, for such decision usually involves
matters of trial strategy. Commonwealth v. Sneed, 45 A.3d 1096,
1108–[11]09 (Pa. 2012).
In this case, [Appellant] argues that counsel was ineffective
for failing to investigate and subpoena a witness, Andrew Taylor,
despite his availability. The trial record shows that [Appellant]
and counsel made a strategic decision not to call Mr. Taylor as a
witness:
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Counsel: Judge, over lunch I had the opportunity to
discuss with [Appellant] the thought of calling
Mr. Taylor and Mr. Ortega as witnesses in the
defense’s case. After considering both the
upside and downside, we were in agreement
that we would not call them.
N.T. 4/17/2013 at 78.
Thereafter, based on counsel’s representation, this court
conducted a colloquy with [Appellant] on the strategic decision to
not call Taylor as a witness:
Court: [Trial counsel] has told me that you also
decided for tactile (sic) and strategic
purposes not to call as a witness Andrew
Taylor and you will not be calling as a witness
Angel Ortega; is that correct?
Defendant: Yes, sir, it is.
Court: You discussed this with him?
Defendant: Yes, sir.
Court: The two of you are in agreement that you will
not call either one of those witnesses - is that
right?
Defendant: Yes, sir.
Court: Did anyone threaten you, promise you
anything or force you to make any of the
decisions you made?
Defendant: No, sir.
Court: Are those decisions made of your own free
will?
Defendant: Yes, sir.
Court: Did you discuss them with [trial counsel]?
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Defendant: Yes.
Court: Are you satisfied with [his] services?
Defendant: Absolutely, yes, sir.
N.T. 4/17/2013 at 81-82.
Here, petitioner is bound by his statements made during the
oral colloquy and may not now assert a claim that contradicts his
in court admissions. Commonwealth v. Muhammad, 794 A.2d 378,
384 (Pa. Super. 2002). Thus, this claim is meritless.
PCRA Court Opinion, 10/19/17, at 7–9.
The record disproves Appellant’s claim that trial counsel was ineffective
for failing to call Andrew Taylor as a witness. The trial court colloquied
Appellant regarding his strategy not to present the witness. N.T., 4/17/13, at
81–82. Appellant specifically informed the trial court that he was aware of his
right to present the witness, but that he decided not to call him after
consultation with his attorney. Id. The trial court found that Appellant “has
knowingly, intelligently, and voluntarily been able to make the decisions
discussed on this record.” Id. at 82. Having made an informed decision not
to call Andrew Taylor as a witness, Appellant cannot now fault trial counsel for
failing to do so. Commonwealth v. Ligons, 971 A.2d 1125, 1148 (Pa. 2009)
(citations omitted). The record supports the conclusions of the PCRA court,
and its ruling is free of legal error. Thus, we affirm the order denying Appellant
relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/18
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