Com. v. Holman, A. ( 2017 )

J-S67022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE HOLMAN, :
:
Appellant : No. 836 EDA 2017
Appeal from the PCRA Order January 27, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003694-2013
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017
Andre Holman (“Holman”) appeals, pro se, from the Order dismissing
his first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In its Opinion, the PCRA court aptly summarized the relevant factual
and procedural history as follows:
On July 17, 2012, [Holman] shot and killed Sebastian
Nunez-Saurez during a robbery. On September 26, 2012,
[Holman] was arrested and charged with first-degree murder,
robbery, conspiracy, and possession of an instrument of crime
(PIC). On March 11, 2014, following a jury trial …, [Holman]
was found guilty of all charges. On that same day, [the trial
c]ourt sentenced [Holman] to a mandatory sentence of life
without the possibility of parole on the first-degree murder
charge, [and] 10 to 20 years [of] state incarceration on the
robbery and conspiracy charges, to run concurrent to one
another and to the sentence imposed on the murder charge[.]
[The trial court] imposed no further penalty on the PIC charge.
On November 12, 2015, the Superior Court affirmed the
judgment of sentence. [See Commonwealth v. Holman, 134
A.3d 488 (Pa. Super. 2015) (unpublished memorandum).]
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* Former Justice specially assigned to the Superior Court.
J-S67022-17
On December 15, 2015, [Holman] filed a pro se [P]etition
for relief pursuant to the PCRA, alleging that trial counsel was
ineffective for failing to conduct a pre-trial investigation. On
April 18, 2016, [Holman] filed a supplemental pro se [P]etition,
raising an additional claim based upon the United States
Supreme Court’s holdings in Miller v. Alabama[, 567 U.S. 460(2012),] and Montgomery v. Louisiana[, 136 S. Ct. 718(2016)]. On May 16, 2016, Stephen T. O’Hanlon, Esquire[,] was
appointed as PCRA counsel. On December 5, 2016, [PCRA
counsel] filed a letter pursuant to [Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and] Commonwealth v. Finley, 550
A.2d 213 ([Pa. Super.] 1988), stating that the issues raised by
[Holman] in his pro se [P]etition[] were without merit and that
there were no other meritorious issues that could be raised in an
amended petition. On December 16, 2016, [the PCRA c]ourt
sent [Holman] a [Pa.R.Crim.P.] 907 Notice, indicating that his
[P]etition would be dismissed based upon [PCRA counsel’s]
[Turner/]Finley letter. [Holman] did not file a reply to the
[Rule] 907 Notice. On January 27, 2017, after independent
review of [Holman’s] pro se [P]etition[], PCRA [c]ounsel’s
[Turner/]Finley letter, and [the Rule] 907 Notice having been
sent and no reply received from [Holman], [the PCRA c]ourt
dismissed [Holman’s P]etition without a hearing based upon
[PCRA c]ounsel’s [Turner/]Finley letter. [Additionally, the
PCRA court permitted PCRA counsel to withdraw from
representation.] On February 24, 2017, [Holman, pro se,]
appealed the dismissal of his [P]etition….
PCRA Court Opinion, 3/16/17, at 1-2.1
On appeal, Holman raises the following issues for our review:
1. Whether the PCRA court erred in denying [Holman’s P]etition
without a hearing due to [PCRA] counsel’s [Turner/]Finley
letter …, when [PCRA] counsel failed to correspond with
[Holman] when [he] attempted to contact counsel by way of
U.S. mail?
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1 The PCRA court did not order Holman to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
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2. Whether the PCRA court erred in denying [Holman’s P]etition
without a hearing when [Holman] claims that trial counsel was
ineffective for failing to conduct his own investigation on behalf
of [Holman]?
3. Was [PCRA] counsel ineffective for failing to thoroughly
investigate the record and find trial counsel ineffective for failing
to uphold his duty of loyalty to [Holman]?
Brief for Appellant at iv.
Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is
free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(citation omitted).
We will address Holman’s claims together. In his first claim, Holman
asserts that PCRA counsel was ineffective because counsel refused to
correspond with him, and failed to amend Holman’s Petition despite his
requests to do so. Brief for Appellant at 1. In his second claim, Holman
contends that PCRA counsel was ineffective for failing to investigate the
record, and present Holman’s claims that trial counsel was ineffective for
failing to (1) conduct a pre-trial investigation regarding his involuntary
confession; (2) interview Holman’s and the Commonwealth’s witnesses; and
(3) obtain medical records to establish that Holman was disabled at the time
of the crime. Id. at 2-4. In his third claim, Holman argues that PCRA
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counsel was ineffective for failing to investigate the record thoroughly and
assert a claim of trial counsel’s ineffectiveness. Id. at 4-6.
It is well-settled that “issues of PCRA counsel effectiveness must be
raised in a serial PCRA petition or in response to a notice of dismissal before
the PCRA court.” Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super.
2012). Holman did not file a response to the PCRA court’s Rule 907 Notice.2
Thus, because Holman challenged PCRA counsel’s ineffectiveness for the first
time on appeal, we cannot review these claims.3 See Commonwealth v.
Henkel, 90 A.3d 16, 30 (Pa. Super. 2014).
Order affirmed.
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2 Holman filed a pro se Motion for extension of time to respond to PCRA
counsel’s “no-merit” letter, and a Motion to proceed pro se. Holman did not
challenge PCRA counsel’s effectiveness in either of these filings.
3 Moreover, to the extent that Holman challenges trial counsel’s failure to
conduct a pre-trial investigation, we agree with the PCRA court’s
determination that Holman did not establish that he suffered prejudice as a
result of trial counsel’s purported errors. See PCRA Court Opinion, 3/16/17,
at 5 (stating that “the overwhelming evidence of [Holman’s] guilt presented
at trial, including [Holman’s] own confession to the murder and the
testimony of [his] co-defendant …, indicated that [Holman] would have been
found guilty no matter how much pre-trial investigation counsel
conducted.”); see also Commonwealth v. Charleston, 94 A.3d 1012,
1026 (Pa. Super. 2014) (stating that “unsupported speculation” does not
establish a reasonable probability that the outcome of trial would have been
different). We additionally observe that Holman’s trial counsel did, in fact,
challenge the voluntariness of his confession in a Motion to suppress
Holman’s police statement, which the trial court denied. Holman also
challenged the voluntariness of his confession on direct review, and this
Court affirmed the denial of suppression. See Holman, 134 A.3d 488(unpublished memorandum at 7-11).
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President Judge Emeritus Stevens joins the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
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