Com. v. Watley, A. ( 2017 )

J-S57037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANDRE RAYMELLE WATLEY, :
:
Appellant : No. 645 EDA 2017
Appeal from the PCRA Order January 27, 2017
in the Court of Common Pleas of Northampton County,
Criminal Division, No(s): CP-48-CR-0001039-2014
BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 14, 2017
Andre Raymelle Watley (“Watley”), pro se, appeals from the Order
denying his first Petition for Relief filed pursuant to the Post Conviction Relief
Act (“PCRA”).1 We affirm.
In its Opinion, the PCRA court set forth the relevant factual and
procedural history underlying the instant appeal, which we adopt as though
fully restated herein. See PCRA Court Opinion, 4/18/17, at 1-6.
In his appellate brief, Watley presents 23 claims for our review:
1. [Whether] [Attorney] Alexander Karam[’s] (PCRA counsel)
Finley[2] Letter was insufficient as a matter of law when PCRA
[c]ounsel failed to (1) detail the nature and extent of his review;
(2) list each issue [that Watley] wished to have reviewed; [and]
(3) explain in the No[-]Merit Letter why [Watley’s] issues are
meritless, in relation to Pro Se Issues[?]
1 42 Pa.C.S.A. §§ 9541-9546.
2 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc).
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2. [Whether the PCRA court] erred in concurring with and
accepting [PCRA counsel’s] defective Finley Letter, allowing
[PCRA counsel] to withdraw[?]
3. [Whether PCRA counsel] was [c]onstitutionally ineffective
for failing to present [a] “Sworn Affidavit” made by eye-witness
“George J. Groller” [(“Groller”),] which [PCRA counsel] failed to
submit[,] that raised a question of assurance to [Watley’s] actual
innocence at [the] evidentiary hearing [on] October 25th,
2016[?]
4. [Whether PCRA counsel] was [c]onstitutionally ineffective
for failing to request a continuance to present eye-witness []
Groller to testify[?]
5. [Whether PCRA counsel] was [c]onstitutionally ineffective
for failing to submit/forward [Watley’s] Pro Se PCRA Petition[,]
filed on December 12th, 2016, claiming [that PCRA counsel] was
ineffective for abandoning to present [sic] “Sworn Affidavit” and
[the] Commonwealth[’s] failure to turn over favorable
exculpatory information in [Watley’s] favor[?]
6. [Whether] [t]he Commonwealth’s prosecution team (i.e.[,]
the police) used third[-]party hearsay information from
[Trooper] Michael Acevedo [(“Trooper Avecedo”)] to implicate
[Watley] in the incident[?]
7. [Whether] [t]he Commonwealth violated [Watley’s]
[c]onstitutional [r]ights to [d]ue [p]rocess by withholding
exculpatory information favorable to [Watley]?
8. [Whether] [t]he Commonwealth’s team (i.e.[,] the police)
violated [Watley’s] [c]onstitutional right[] to [d]ue [p]rocess and
[Pa.R.Crim.P.] 573 (Right to Discovery & Inspection)[?]
9. [Whether PCRA counsel] was [c]onstitutionally ineffective
for failing to obtain exculpatory information that [the]
Commonwealth’s prosecution team (i.e.[,] police) withheld from
[d]iscovery and [i]nspection that [Watley] requested[,] and
requested [PCRA counsel] to retrieve by subpoena[?]
10. [Whether PCRA counsel] was [c]onstitutionally ineffective
for failing to assert that [plea counsel was] ineffective for
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violating [Watley’s] [d]ue [p]rocess [r]ights for fil[l]ing out
[Watley’s] guilty plea colloquy, failing to provide [Watley] with
legal right [sic] to read and understand [the] plea[?]
11. [Whether plea counsel] was [c]onstitutionally ineffective
for violating [Watley’s] [d]ue [p]rocess [r]ights by filling out
[the] written plea colloquy[?]
12. [Whether plea counsel] was [c]onstitutionally ineffective
for wrongly inducing [Watley] to plead guilty?
13. [Whether PCRA counsel] was [c]onstitutionally ineffective
for failing to assert that [plea counsel was] ineffective for failing
to appeal [Watley’s] sentence that the on[-]the
[-]record colloquy was insufficient to support [the] written
colloquy as a matter of [Pa.R.Crim.P.] 590[?]
14. [Whether plea counsel] was [c]onstitutionally ineffective
for failing to appeal [Watley’s] sentence on direct appeal as
requested[?]
15. [Whether plea counsel] was [c]onstitutionally ineffective
for failing to file omnibus pre-trial motions to
challenge/suppress: (1) the [s]tatute of limitations; (2)
[Pa.R.Crim.P.] 600 (180 days); (3) [s]uggestive [i]dentification;
(4) [s]ubpoena [e]xculaptory [i]information; [and] (5)
[s]uppression of [e]vidence[?]
16. [Whether] [t]he Commonwealth allowed fraud upon the
court [by] accepting [plea counsel’s] forging [of Watley’s]
signature on [the] Rule 600 waiver[?]
17. [Whether] [t]he Commonwealth had no jurisdiction to try
[Watley] since the [s]tatute of [l]imitation[s] had passed[?]
18. [Whether] [t]he Commonwealth’s team (i.e.[,] the police)
violated [Watley’s] [c]onstitutional rights to [d]ue [p]rocess of
[l]aw [by] delaying to inform [him of the] tolling provision
having passed for the statute of limitations[?]
19. [Whether] [t]he Commonwealth’s prosecution team (i.e.[,]
the police) conducted [a] suggestive identification of [Watley]?
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20. [Whether plea counsel] was [c]onstitutionally ineffective
for failing to investigate [the] case[?]
21. [Whether plea counsel] was [c]onstitutionally ineffective
for failing to meet with [Watley] to consult over [the] case and
prepare [the] defense[?]
22. [Whether plea counsel] was [c]onstitutionally ineffective
for failing to interview [Watley’s] alibi witnesses[?]
23. [Whether PCRA counsel] was [c]onstitutionally ineffective
for failing to preserve [Watley’s] issues[?]
Brief for Appellant at 4-6 (issues renumbered for ease of disposition,
footnote added, some emphasis and capitalization omitted).
We will address Watley’s first and second issues together. First,
Watley claims that the PCRA court improperly granted PCRA counsel
permission to withdraw, where PCRA counsel’s Finley letter failed to (a)
detail the nature and extent of his review, (b) list each issue Watley wished
to have reviewed, and (c) set forth why Watley’s pro se issues lack merit.
Id. at 16. Watley argues that PCRA counsel’s No-Merit Letter was deficient
because it failed to include Watley’s claim of a violation of Brady v.
Maryland, 373 U.S. 83 (1963). Brief for Appellant at 16. Watley further
disputes his PCRA counsel’s assertion that his guilty plea was knowing and
voluntary, because Watley had been “forbidden” to read the plea colloquy,
initial each page, and did not fill out the written plea colloquy. Id. Watley
also challenges his PCRA counsel’s calculations regarding his Pa.R.Crim.P.
600 claim, as well as counsel’s conclusion that a statute of limitations
challenge lacked merit. Id. at 16-17.
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In his second claim, Watley argues that PCRA counsel’s Finley letter
was defective and therefore, the PCRA court erred in permitting counsel to
withdraw. Id. at 17. Watley argues that the PCRA court further erred in not
appointing new counsel to represent him, following his claim of PCRA
counsel’s ineffectiveness. Id. In support, Watley challenges PCRA counsel’s
conclusion that the claim of a Brady violation was waived, and that Watley’s
Rule 600 claim lacks merit. Id.
In its Opinion, the PCRA court addressed these first two issues and
concluded that they lack merit. See PCRA Court Opinion, 4/18/17, at 6-7
(regarding PCRA counsel’s compliance with Finley), 11-12 (pertaining to
Watley’s statute of limitations claim), 12 (pertaining to Watley’s Brady
claim). We agree with the reasoning of the PCRA court, as set forth in its
Opinion, and affirm on this basis with regard to Watley’s first two claims.3
See id.; see also Commonwealth v. Barbaro, 94 A.3d 389, 391 n.2 (Pa.
Super. 2014) (concluding that the appellant’s guilty plea waived any claim of
error pursuant to Rule 600).
Watley’s third, fourth and fifth claims pertain to an affidavit signed by
Groller. In his third claim, Watley argues that his PCRA counsel rendered
ineffective assistance by failing to present newly discovered evidence, i.e.,
the affidavit of Groller. Brief for Appellant at 21. In this affidavit, Groller
3We will address Watley’s challenges related to his written plea colloquy in
more detail, infra.
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stated that he had witnessed two men enter the victim’s home, but did not
see Watley enter the home. See PCRA Court Opinion, 4/18/17, at 17-18.
In his fourth claim, Watley argues that his PCRA counsel rendered ineffective
assistance by not requesting a continuance so that the testimony of Groller
could be presented. Brief for Appellant at 24. Watley also argues that his
PCRA counsel abandoned him, and was ineffective for not presenting
Groller’s affidavit. Id. at 25. According to Watley, he should have been
afforded new counsel upon PCRA counsel’s “abandonment.” Id. at 25-26.
Our review of the record discloses that Watley failed to present his
claims regarding the Groller affidavit in his pro se PCRA Petition, his
amended PCRA Petition, or in his Reply to PCRA counsel’s Finley letter.
Rather, Watley raised the Groller affidavit, for the first time, in his Concise
Statement of matters complained of on appeal. See Statement of Matters,
¶¶ 3-5. Accordingly, these claims are waived. See Commonwealth v.
Rose, 2017 Pa. Super. LEXIS 756, *12 (deeming an issue waived where the
specific objection was not raised for the first time until it was included in the
appellant’s Pa.R.A.P. 1925(b) statement).4
In his sixth claim of error, Watley asserts that the Commonwealth
improperly used third-party hearsay information to implicate him in the
crimes. Brief for Appellant at 44. In support, Watley asserts that the police
4 Even if Watley had preserved his third, fourth and fifth claims, we would
conclude that they lack merit, for the reasons stated in the PCRA court’s
Opinion. See PCRA Court Opinion, 4/18/17, at 15-18.
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used “hearsay” statements from Randy Hayward (“Hayward”), from a
separate incident, to implicate Watley in the instant case. Id. Watley
contends that when the police detective investigating his case received this
information, he improperly took no further action to interview Hayward, or to
obtain a written statement from him. Id. Watley also contends that
Hayward’s photograph was never presented to the victim for review. Id. at
45. Watley claims that the photograph of him, used for identification by
police, should have been excluded as “fruits of the poisonous tree.” Id.
It appears that Watley challenges the investigation conducted by the
police. This claim is not cognizable under the PCRA.5 See 42 Pa.C.S.A.
§ 9543(a)(2)(i)-(vii) (setting forth the cognizable claims under the PCRA).
Consequently, we discern no error or abuse of discretion by the PCRA court
in denying Watley relief.
In his seventh, eighth and ninth claims, Watley directs our attention to
a report made by the victim to Lehigh County Prison authorities. Watley
argues that his plea counsel rendered ineffective assistance by failing to
obtain this report. Brief for Appellant at 26-27. According to Watley, the
victim reported to prison authorities that two of his attackers were being
housed in the Lehigh County Prison unit. Id. at 27. Watley states that he
5 Further, “upon entry of a guilty plea, a petitioner waives all defects and
defenses except those concerning the validity of the plea, the jurisdiction of
the trial court, and the legality of the sentence imposed.” Commonwealth
v. Pitts, 981 A.2d 875, 886 (Pa. 2009) (citation omitted).
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was not incarcerated at the time, “nor did [the victim] know of [] Watley[’s]
identity.” Id. Watley asserts that this report would have shown that he was
mistakenly identified by the victim. Id. Watley asserts that his PCRA
counsel rendered ineffective assistance by not raising this claim or
addressing it in his Finley letter. Id. at 26. In addition, Watley asserts that
the Commonwealth’s failure to produce this evidence violated the United
States Supreme Court’s holding in Brady. Id. at 32-33.
In its Opinion, the PCRA court deemed the underlying claim waived:
[Watley] waived this claim by failing to raise it on direct appeal.
[42 Pa.C.S.A.] § 9544(b); (see also N.T., 10/25/[]16, at 30[]
(Guilty Plea Counsel noting that [Watley] did not ask him to file
an appeal), [Exhibit] CW5 (letter from Guilty Plea Counsel
indicating his willingness to file an appeal if requested by
[Watley]).)….
PCRA Court Opinion, 4/18/17, at 12. We agree with and adopt the sound
reasoning of the PCRA court, as set forth above.6 See id. We additionally
note the following.
By entering a guilty plea, Watley waived all non-jurisdictional defects
and defenses, including a claim that the Commonwealth had failed to comply
with the rules of discovery. See Commonwealth v. Jones, 929 A.2d 205,
212 (Pa. 2007) (stating that a plea of guilty waives all non-jurisdictional
6 We additionally note that Watley did not claim PCRA counsel’s
ineffectiveness, in this regard, in his pro se PCRA Petition, his Amended
Petition, or in his Reply to the Finley letter. Thus, it is waived on this basis
as well. See Rose, 2017 Pa. Super. LEXIS 756, at *12 (deeming an issue
waived where the specific objection was not raised for the first time until it
was included in the appellant’s Pa.R.A.P. 1925(b) statement).
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defects and defenses). Accordingly, Watley is not entitled to relief on this
basis. See id.In his tenth, eleventh, twelfth and thirteenth claims, Watley asserts
ineffectiveness assistance of counsel related to his guilty plea. In his tenth
claim, Watley argues that PCRA counsel rendered ineffective assistance by
failing to assert that plea counsel violated his due process rights by filling
out the written plea colloquy for Watley. Id. at 19. Watley argues that as a
result, plea counsel deprived Watley of the opportunity to read and
understand the plea and his rights. Id. Watley also includes a claim that
plea counsel rendered ineffective assistance by not investigating his claim or
meeting with Watley as requested. Id. According to Watley, plea counsel’s
failure to meet with him resulted in counsel being unaware that Watley
wished to withdraw his plea. Id.
In his eleventh claim, Watley again asserts that his plea counsel
violated his due process rights by reading the written plea colloquy to him,
and not allowing him to have access to it. Id. In his twelfth claim, Watley
asserts that his plea counsel wrongly induced him to plead guilty. Id. at 27-
28. Watley argues that counsel told Watley that he had no chance to win at
trial, and if he went to trial, the judge would impose consecutive sentences.
Id. at 28. Watley asserts that his plea counsel thus forced him to plead
guilty, and ignored his assertions of innocence. Id.
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In his thirteenth claim, Watley argues that his PCRA counsel rendered
ineffective assistance by not alleging plea counsel’s ineffectiveness for not
challenging the on-the-record plea colloquy. Id. at 20. Watley asserts that
plea counsel rendered ineffective assistance by not filing a direct appeal
claiming that the on-the-record colloquy “was insufficient to support [the]
written colloquy as a matter of [Pa.R.Crim.P.] 590.” Brief for Appellant at
20.
In its Opinion, the PCRA court addressed Watley’s arguments based
upon plea counsel’s failure to meet with him and investigate the case, and
concluded that these arguments lack merit. See PCRA Court Opinion,
4/18/17, at 8-11. We agree with the sound reasoning of the PCRA court, as
set forth in its Opinion, and affirm on this basis as to this claim. See id.
Our review further discloses that, in his Pa.R.A.P. 1925(b) Concise
Statement, Watley raised no claim that he had been forbidden to read, fill
out or initial his guilty plea colloquy. Accordingly, these related claims are
waived. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005)
(recognizing that the failure to raise claims in a court-ordered Pa.R.A.P.
1925(b) statement will result in waiver of those claims on appeal).
Regarding Watley’s claim of ineffective assistance by PCRA counsel for
failing to allege plea counsel’s ineffectiveness, we note the following. To be
eligible for relief based on a claim of ineffective assistance of counsel, the
petitioner must demonstrate, by a preponderance of the evidence, that (1)
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the underlying claim is of arguable merit; (2) no reasonable basis existed for
counsel’s action or omission; and (3) there is a reasonable probability that
the result of the proceeding would have been different absent such error.
Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008).
“Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving otherwise.”
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (internal
citation omitted). “[A] plea of guilty will not be deemed invalid if the
circumstances surrounding the entry of the plea disclose that the defendant
had a full understanding of the nature and consequences of his plea and that
he knowingly and voluntarily decided to enter the plea.” Commonwealth
v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (citation omitted).
“A valid plea colloquy must delve into six areas: 1) the nature of the
charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the
presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s
power to deviate from any recommended sentence.” Commonwealth v.
Morrison, 878 A.2d 102, 107 (Pa. Super. 2005); Pa.R.Crim.P. 590,
Comment.
During the plea colloquy, the trial court informed Watley of the
charges against him, see N.T., 7/1/15, at 2-3; the factual bases for the
plea, see id. at 8-10; his right to a jury trial, see id. at 3-4; the
presumption of innocence, see id. at 3; the sentencing ranges, see id. at 4-
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6; and the court’s power to deviate from any recommended sentences, see
id. at 8. When the trial court asked Watley whether he had filled out the
written plea colloquy form, Watley responded in the affirmative.7 See id. at
6-7. Watley also informed the court that he fully understood his rights, as
set forth in the written colloquy, and was satisfied with his plea counsel’s
advice to him. Id. at 7. Watley admitted to the facts underlying the
charges against him. Id. at 8-10.
Thus, the record establishes that Watley tendered a knowing,
intelligent plea, and that there is no merit to Watley’s underlying claim of
ineffective assistance of plea counsel. Consequently, we cannot conclude
that PCRA counsel rendered ineffective assistance by failing to challenge plea
counsel’s alleged ineffectiveness in this regard. See Commonwealth v.
Reaves, 923 A.2d 1119, 1128 n.10 (Pa. 2007) (concluding that the failure
to satisfy any prong of the test for ineffectiveness will require rejection of
the claim).
7 As this Court has explained,
a defendant may not challenge his guilty plea by asserting that
he lied while under oath, even if he avers that counsel induced
the lies. A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and he may
not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.
Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)
(citations omitted).
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In his fourteenth claim, Watley argues that his plea counsel failed to
file a requested direct appeal. Brief for Appellant at 34. Watley asserts that
plea counsel violated his constitutional rights by not filing an appeal. Id. at
31-32.
Watley did not raise this claim in his pro se PCRA Petition, the
Amended Petition, or his Reply to PCRA counsel’s Finley letter. Accordingly,
it is waived. See Rose, 2017 Pa. Super. LEXIS 756, at *12 (deeming an
issue waived where the specific objection was not raised for the first time
until it was included in the appellant’s Pa.R.A.P. 1925(b) statement).
In his fifteenth claim of error, Watley argues that his plea counsel
rendered ineffective assistance by not filing omnibus pretrial motions to
challenge (1) the statute of limitations, (2) the application of Pa.R.Crim.P.
600, and (3) a suggestive identification procedure. Brief for Appellant at 29.
Watley further argues that his counsel failed to subpoena exculpatory
information. Id. Watley argues that his plea counsel did not act in his best
interests when he failed to “Amend and Submit” the omnibus pretrial
Motions filed by Watley, pro se, and by abandoning those issues. Id.Watley further argues that his plea counsel improperly failed to challenge
the victim’s identification of him as one of the perpetrators, as well as the
statute of limitations and the violation by the Commonwealth of Rule 600.
Id. at 29-30.
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In his related, sixteenth through nineteenth claims, Watley again
challenges the Commonwealth’s violation of Rule 600, its failure to notify
Watley of the expiration of the statute of limitations period, and its improper
use of a suggestive identification procedure. See id. at 37-41.
In its Opinion, the PCRA court addressed these claims and concluded
that they lack merit. See PCRA Court Opinion, 3/18/17, at 11-12 (related to
the statute of limitations and the alleged exculpatory evidence), 12-14
(related to the victim’s identification of Watley), 14-15 (related to Watley’s
Rule 600 challenge). We agree with the sound reasoning of the PCRA court
and affirm on this basis with regard to these claims. See id.8
In his twentieth through twenty-second issues, Watley claims that his
plea counsel rendered ineffective assistance by not investigating the case,
meeting with Watley, and interviewing potential alibi witnesses. Brief for
Appellant at 30-31 (claiming the failure to interview witnesses), 42-44
(claiming the failure to consult with Watley and investigate the case).
In its Opinion, the PCRA court addressed these claims and concluded
that they lack merit. See PCRA Court Opinion, 3/18/17, at 8-11. The PCRA
Court’s findings are supported in the record and its legal conclusions are
8 See Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007)
(recognizing that “[a] plea of guilty constitutes a waiver of all
nonjurisdictional defects and defenses.”).
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sound. We therefore affirm on the basis of the PCRA court’s Opinion with
regard to these claims. See id.Finally, Watley argues that his PCRA counsel rendered ineffective
assistance by failing to preserve Watley’s claims. Brief for Appellant at 45.
According to Watley, counsel was required to discover issues of merit and
amend the issues presented in his pro se PCRA Petition. Id. In particular,
Watley asserts that PCRA counsel rendered ineffective assistance by not
preserving issues related to the legality of his sentence, the withholding of
exculpatory information, and plea counsel’s representation to the trial court
that Watley understood his guilty plea. Id. Watley offers no legal analysis
as to each of these assertions. To the extent that Watley’s claims are not
addressed supra, we conclude that they are waived. See Commonwealth
v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.” (citation omitted)).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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Circulated 10/17/2017 11:53 AM
IN TH COURT OF COMMON PLEAS OF ·~,
NORTHAMPTON COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF )
PENNSYLVANJCA ) No. C-48-CR-1039-2014
)
v. )
)
ANDRE RAYMELLE WA )
Defendant )
PENNSYLVANIA ULE OF APPELLATE PROCEDURE 1925 a
STATEMENT
AND NOW, this 1 th day of April, 2017, it is hereby specified that the
place in the record whe the reasons in support of the order appealed from
may be found is the Co rt's "Order of Court Dismissing Defendant's Petition
for Post-Conviction Coll teral Relief" ("Dismissal Order"), filed on January
27, 2017, as supplemen ed herein.1
On March 2, 2017, De endant filed a "Statement of Matters Complained of Purs[ua]nt
to Rule 1925(b) of the Penns lvania Rules of [Appellate] Procedure" ("Concise Statement").
All of the issues raised in t e Concise Statement, with the exception of issues 1 and 2,
either were not raised in th s Court and are thus waived, pursuant to Rule of Appellate
Procedure 302(a), are alrea y discussed in the Statement of Reasons contained in the
Dismissal Order, or are too ague for the Court to respond to and are thus waived. See
Commonwealth v. Thompson, 778 A.2d 1215, 1223-24 (Pa. Super. 2001) (issues raised in
concise statement waived if t o vague for the court to identify and address).
1
On July 1, 2015, Defendant pleaded guilty to one count of robbery as a
felony of the second degree, 2 one count of terroristic threats as a
misdemeanor of the first degree,3 and one count of aggravated assault as a
felony of the first degree.4 On July 22, 2015, the Court sentenced
Defendant to an aggregate sentence of six to twenty years in state prison.
Defendant did not appeal from the judgment of sentence.
On June 7, 2016, Defendant, acting pro se, filed a "Petition for
Post[- ]Conviction Collateral Relief" ("PCRA Petition"), pursuant to the
Post[- ]Conviction Relief Act ("PCRA"), 42 Pa.CS.A. §§ 9541-9546. On June
14, 2016, James P. Madsen, Esquire was appointed to represent Defendant
with regard to his PCRA Petition. On August 11, 2016, Attorney Madsen filed
an Amended PCRA Petition, raising the following three issues: 1) Defendant's
guilty plea counsel, James F. Brose, Esquire ("Guilty Plea Counsel") was
ineffective for failing to challenge a pre-trial identification of Defendant; 2)
Guilty Plea Counsel was ineffective for failing to seek dismissal of the case
pursuant to the statute of limitations; and 3) Guilty Plea Counsel was
ineffective for failing to seek dismissal of the case pursuant to Pennsylvania
Rule of Criminal Procedure 600(0)(1).
On August 24, 2016, Attorney Madsen's appointment as Defendant's
counsel was vacated, and Alexander J. Karam, Jr., Esquire was appointed to
2
18 Pa.C.S.A. § 3701(a)(1)(iv).
3
Id. § 2706.
4
Id. § 2702(a)(1).
2
represent Defendant. Attorney Karam chose to rely on the Amended PCRA
Petition filed by Attorney Madsen, and a hearing was held thereon on
October 25, 2016. Thereafter, the Court set a briefing schedule for the
parties.
On November 18, 2016, the Court received a No-Merit Letter from
Attorney Karam, wherein he indicated that, based on the record made at the
hearing and his review of the file, there was no issue that would entitle
Defendant to post-conviction collateral relief in this case. Accordingly,
Attorney Karam requested permission to withdraw his appearance and noted
that he was sending a copy of the No-Merit Letter to Defendant with
instructions about continuing pro se or with private counsel. 5
On December 21, 2016, the Court filed a Notice indicating that it
intended to dismiss Defendant's Amended PCRA Petition. In the Notice, the
Court vacated Attorney Karam's appointment to represent Defendant and
notified Defendant that he could proceed pro se or retain private counsel."
5
On December 12, 2016, Defendant filed a pro se petition for post-conviction
collateral relief. However, because Defendant was represented by counsel at the time of
this filing, the Court took no action on the pro se petition and referred it to Defendant's
counsel. See Pa.R.Crim.P. 576(A)(4). The issue that Defendant attempted to raise in the
pro se petition relates to issues 3, 4, and 5 in the Concise Statement, which the Court will
address further infra.
6
On January 5, 2017, after Attorney Karam's appointment was vacated, Defendant
filed another pro se "Petition for Post[- ]Conviction Collateral Relief" ("Second PCRA
Petition"). As Defendant's appeal from the Dismissal Order is pending in the Superior Court,
this Second PCRA Petition remains pending before this Court pursuant to Commonwealth v.
Lark, 746 A.2d 585, 588 (Pa. 2000) ("[W]hen an appellant's PCRA appeal is pending before
a court, a subsequent PCRA petition cannot be filed until the resolution of review of the
pending PCRA petition by the highest state court in which review is sought, or upon the
expiration of the time for seeking such review.").
3
On December 30, 2016, Defendant, acting pro se, timely filed a "Reply &
Answer to Counsel's Turner/Finley No Merit Letter" ("Response"), pursuant
to Rule 907(1) and Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa.
2009) (noting challenge to no-merit letter and withdrawal of appointed
counsel is waived if not raised in response to notice of intention to dismiss
PCRA petition).7 In the Response, Defendant raised the following five
issues: 1) Attorney Karam was incorrect in concluding that Guilty Plea
Counsel was not ineffective for failing to seek dismissal of the case pursuant
to Rule 600; 2) Attorney Karam was incorrect in concluding that Guilty Plea
Counsel was not ineffective for failing to seek dismissal of the case pursuant
to the statute of limitations; 3) Attorney Karam's No-Merit Letter failed to
address Defendant's claim pursuant to Brady v. Maryland, 373 U.S. 83(1963), which was raised in Defendant's original pro se PCRA Petition; 4)
Attorney Karam was incorrect in concluding that Defendant's guilty plea was
knowing, intelligent, and voluntary; and 5) Attorney Karam was incorrect in
concluding that Guilty Plea Counsel was not ineffective for failing to
challenge the pre-trial identification of Defendant.
7
In Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014), the Superior Court
discussed the difficulty in enforcing PCRA petitioners' rule-based right to effective counsel.
The court noted that "[p]ossible non-legislative solutions to alleviate the problem could
include requiring a notice of intent to dismiss in all first-time petition cases, even after an
evidentiary hearing." Henkel, 90 A.3d at 29 n.4. That is exactly the procedure that was
employed in this case. However, the Court notes that it mistakenly titled its Notice as a
"Notice of Intention to Dismiss Defendant's Petition for Post-Conviction Collateral Relief
Without a Hearing."
4
On January 27, 2017, the Court entered the Dismissal Order that is
the subject of the instant appeal. In the Dismissal Order, the Court
dismissed Defendant's Amended PCRA Petition and, by extension, his
underlying pro se PCRA Petition, finding that Guilty Plea Counsel was not
ineffective, Defendant's guilty plea was knowing, intelligent, and voluntary,
and Defendant waived his Brady claim.
After the Court ordered him to do so, Defendant filed his Concise
Statement, in which he raises the following pertinent issues:
1. Whether [Attorney Karam's No-Merit] Letter was
insufficient as a matter of law when [Attorney Karam] failed to
(1) detail the nature and extent of his review; (2) list each issue
the petitioner wished to have reviewed; [and] (3) explain in the
No[- ]Merit Letter why [Defendant]'s issues are meritless[,] in
relation to ... pro se issue 1?
2. Whether PCRA Court erred in concurring with and
accepting [Attorney Karam]'s defective [No-Merit] Letter,
allowing [Attorney Karam] to withdraw?
3. Whether [Attorney Karam] was constitutionally
ineffective for failing to present 'sworn affidavit' made by
eye[]witness "George J. Grolier" in which he {[Attorney Karam]}
failed to submit "newly[- ]discovered" evidence that raised a
question of assurance as to [Defendant]'s actual innocence at
evidentiary hearing on October zs", 2016?
4. Whether [Attorney Karam] was constitutionally
ineffective for failing to submit/forward [Defendant]'s pro se
PCRA petition filed on December 12th, 2016[,] claiming he
{[Attorney Karam]} was ineffective for abandoning to present
"sworn affidavit" and Commonwealth['s] failure to turn over
favorable "exculpatory["] information in [Defendant]'s favor?
5
5. Whether [Attorney Karam] was constitutionally
ineffective for failing to request a continuance to present
eye[]witness George J. Grolier to testify?
(Concise Statement 1-2 (suggested answers omitted).)8
First, Defendant asserts that Attorney Karam's No-Merit Letter was
insufficient as to PCRA Ground #1 in Defendant's original, pro se PCRA
Petition, which was filed on June 7, 2016. PCRA Ground # 1 asserted that
Guilty Plea Counsel was ineffective for a multitude of reasons, including
failing to meet with Defendant to prepare a defense, failing to investigate
the case, failing to challenge the pre-trial identification, and failing to
challenge the case under the statute of limitations.
Counsel petitioning to withdraw from PCRA representation
must ... review the case zealously. Turner/Fin/ey[9] counsel
must then submit a "no-merit" letter to the trial court . . .
detailing the nature and extent of counsel's diligent review of the
case, listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
"no merit" letter/brief; (2) a copy of counsel's . petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that
... satisfy the technical demands of Turner/Finley, the court ...
must then conduct its own review of the merits of the case. If
8
The Court has not reproduced issues 6 through 23,. all of which either were not
raised in this Court, are already discussed in the statement of reasons contained in the
Dismissal Order, or are too vague to permit review and are thus waived. See note 1, supra.
In addition, several of the issues are essentially duplicative of each other or are subsumed
within one of the issues reproduced above.
9
Commonweelth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988).
6
the court agrees with counsel that the claims are without merit,
the court will permit counsel to withdraw and deny relief.
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (quoting
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012)).
In his No-Merit Letter, Attorney Karam stated that he "review[ed] the
docket, the file, the transcript of the PCRA hearing[,] and the record made."
(No-Merit Letter 1.) Therefore, he detailed the nature of his review.
Additionally, Attorney Karam listed and discussed all of the issues raised in
PCRA Ground #1, concluding and explaining that none of them had any
merit. Accordingly, Attorney Karam's No-Merit Letter was not defective as
alleged by Defendant.
In the second issue raised in his Concise Statement, Defendant claims
that this Court erred in agreeing with Attorney Karam's assessment that all
of Defendant's claims lacked merit. Because this issue essentially claims
that the Court erred in dismissing his PCRA Petition, the Court will discuss
the merits of Defendant's PCRA issues. Because all such issues did indeed
lack merit, Defendant is not entitled to appellate relief.
Ineffective assistance of counsel claims arising from the
plea-bargaining process are eligible for PCRA review.
Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773
A.2d 126 (2001) (holding all constitutionally recognized claims of
ineffective assistance are cognizable under PCRA). "Allegations
of ineffectiveness in connection with the entry of a guilty plea
will serve as a basis for relief only if the ineffectiveness caused
the defendant to enter an involuntary or unknowing plea."
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007)
(quoting Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.
7
Super. 2002)). "Where the defendant enters his plea on the
advice of counsel, the voluntariness of the plea depends on
whether counsel's advice was within the range of competence
demanded of attorneys in criminal cases." Moser, supra.The standard for post-sentence withdrawal of guilty
pleas dovetails with the arguable merit/prejudice
requirements for relief based on a claim of ineffective
assistance of plea counsel, . . . under which the
defendant must show that counsel's deficient
stewardship resulted in a manifest injustice, for
example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea. This standard is
equivalent to the "manifest injustice" standard
applicable to all post-sentence motions to withdraw a
guilty plea.
Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super.
2005) (en bane), appeal denied, 585 Pa. 688, 887 A.2d 1241(2005) (internal citations omitted).
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016). In
addition, a defendant's "mere dissatisfaction with counsel does not work a
violation of his Sixth Amendment right to counsel. Without more, such
dissatisfaction could not create a situation which we would recognize as
coercing a guilty plea." Commonwealth v. Egan, 469 A.2d 186, 190 (Pa.
Super. 1983).
The Court begins with Defendant's assertions that Guilty Plea Counsel
was ineffective for failing to meet with him to consult about the case and for
failing to investigate the case. This particular claim is one uniquely familiar
8
to Defendant, who has raised it before in a separate, prior PCRA case, 1° in
which the Superior Court stated:
"[C]ounsel is not deemed ineffective per se merely because of
the short amount of time he has met with his client."
Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 896
(1999). "[T]he time actually spent by counsel with the accused
discussing his case is not necessarily related to, and affords no
basis for inferring, the extent of total trial preparation."
Commonwealth v, Owens, 454 Pa. 268, 312 A.2d 378, 381
(1973).. Rather, "to establish [ineffectiveness of counsel, the
defendant] must establish that counsel inexcusably failed to
raise issues which, had they been raised, would have afforded
[the defendant] relief." Porter, 728 A.2d at 896.
Commonwealth v. Watley, 153 A.3d 1034, 1046 (Pa. Super. 2016) (some
alterations in original); see also Commonwealth v. Dade, 418 A.2d 661, 662
(Pa. Super. 1980) ("The length of time counsel consults with his client is but
one factor determining whether the chosen course was reasonable.").
With regard to meeting with Defendant, Guilty Plea Counsel testified at
the PCRA hearing that he met and spoke with Defendant several times and
that Defendant ultimately agreed with Guilty Plea Counsel's assessment that
his chances at trial were not strong. (See N.T., 10/25/2016, at 17:11-20,
10
In that case, Defendant
was convicted of two counts of firearms not to be carried without a license,
one count of possession with intent to deliver ("PWID") ecstasy, one count of
criminal conspiracy to commit PWID, one count of possession of ecstasy, one
count of possession of a small amount of marijuana, one count of false
identification to law enforcement, and two summary offenses. The court
imposed consecutive sentences of 42-84 months on the firearms charges, 60-
120 months on the PWID charge, 4-12 months on the false identification
charge, and a consecutive sentence of 15-30 days on the marijuana charge.
Commonwealth v. Watley, 153 A.3d 1034, 1038 (Pa. Super. 2016) (footnotes omitted).
9
20:9-21, 22:22-25:20, 29:7-14, 68:17-69:22.) This represents sufficient
consultation with Defendant regarding his case.
With regard to investigating potential witnesses,
[c]ounsel has a general duty to undertake reasonable
investigations or make reasonable decisions that render
particular investigations unnecessary. . . . The duty to
investigate, of course, may include a duty to interview certain
potential witnesses; and a prejudicial failure to fulfill this duty,
unless pursuant to a reasonable strategic decision, may lead to a
finding of ineffective assistance ....
When raising a failure to call a potential witness claim, the
PCRA petitioner satisfies the performance and prejudice
requirements ... by establishing that:
(1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew
of, or should have known of, the existence of the
witness; ( 4) the witness was willing to testify for the
defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 599
(2007).
Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citations
omitted).
In his pro se PCRA Petition, Defendant referred, in vague terms, to the
fact that Guilty Plea Counsel failed to interview potential witnesses by the
names of Eddie Matos and Tywaan Hendricks. (PCRA Pet. 1] 6A PCRA
Ground # 1.) However, at no time did Defendant ever plead or provide
10
evidence showing that either Matos or Hendricks was willing to testify for the
defense. (See N.T., 10/25/2016, at 47:1-16, 65:7-11, 75:23-76:11 (here,
Guilty Plea Counsel noted that, based upon the statement Matos gave to
police, he would not have been a helpful defense witness; nevertheless, he
would have investigated him further had Defendant not expressed a desire
to accept a plea deal).) Therefore, Defendant has not met his burden of
establishing that Guilty Plea Counsel was ineffective for failing to interview
these potential witnesses.
In his Amended PCRA Petition and pro se PCRA Petition, Defendant
asserted that Guilty Plea Counsel was ineffective for failing to seek dismissal
of the case pursuant to the applicable statute of limitations. The salient
statute of limitations is found at section 5552 of the Judicial Code, which
states that a prosecution for a "major offense," or a conspiracy to commit
one, must be commenced within five years after it is committed or conspired
to be committed. 42 Pa.C.S.A. § 5552(b)(1), (3). "[A] prosecution is
commenced ... when ... an information under section 8931(b) [of the
Judicial Code] (relating to indictment and information) is issued, or when a
warrant, summons or citation is issued, if such warrant, summons or citation
is executed without unreasonable delay." Id. § 5552(e).
Every offense charged in the information in this case was governed by
this five-year statute of limitations. The events giving rise to the charges
occurred on February 3, 2009. According to the magisterial district court
11
docket sheets, a warrant for Defendant's arrest was issued on January 31,
2014, and was returned served on February 24, 2014. Thus, the warrant
was issued within the five-year period and executed without unreasonable
delay." Accordingly, there was no basis for challenging Defendant's case
based upon the statute of limitations.12
In PCRA Ground #2 of his pro se PCRA Petition, Defendant claimed
that the Commonwealth violated Brady by failing to turn over a statement
allegedly made by the victim to a counselor at Lehigh County Prison. As
discussed in the Dismissal Order, Defendant waived this claim by failing to
raise it on direct appeal. Id. § 9544(b); (see also N.T., 10/25/2016, at
30: 18-32:6 (Guilty Plea Counsel noting that Defendant did not ask him to
file an appeal), Ex. CWS (letter from Guilty Plea Counsel indicating his
willingness to file an appeal if requested by Defendant).) In addition, prose
PCRA Ground #3 raised the statute of limitations, which the Court has
already discussed above.
In his Amended PCRA Petition and in PCRA Ground #4 of his pro se
PCRA Petition, Defendant claimed that Guilty Plea Counsel was ineffective for
failing to move to suppress a "suggestive identification." The photograph
11
Defendant was in jail for a separate case at the time the instant arrest warrant was
issued, thus explaining the delay in its execution. (See N.T., 10/25/2016, at 39:3-40:20.)
12
In his No-Merit Letter, Attorney Karam found that Defendant's statute of limitations
issue lacked merit because "[a] police criminal complaint was filed on January 31, 2014, (5
years less 3 days from the offense date)." (No-Merit Letter 2.) While this is true, a
prosecution is commenced either upon the issuance of a warrant or the filing of an
information, not a criminal complaint. Nevertheless, Attorney Karam was ultimately correct
that the case was commenced within the statute of limitations.
12
that was, allegedly, used to secure an identification of Defendant is
attached, in black and white, to Defendant's Response to the Court's Notice
as Exhibit A. At the PCRA hearing, Guilty Plea Counsel testified that he
concluded that a challenge to the identification based upon the photograph
would have been unsuccessful, and this Court agrees. (See N.T.,
10/25/2016, at 7:20-8:23, 22:15-23:7, 74:5-75:22, 78:9-79:1.)
"Photographs used in line-ups are not unduly suggestive if the
suspect's picture does not stand out more than the others, and the people
depicted all exhibit similar facial characteristics." Commonwealth v. Stiles,
143 A.3d 968, 978 (Pa. Super. 2016) (quoting Commonwealth v. Fulmore,
25 A.3d 340, 346 (Pa. Super. 2011)). Here Defendant's sole argument is
that he is wearing prison clothes in the photograph. However, that fact,
assuming it is true, is not obvious to the naked eye, and Defendant's
photograph has no other unique characteristics that would make it stand out
from any others. Further, Guilty Plea Counsel testified that there was
nothing in the photo array that made him believe that Defendant's stood
out. (N.T., 10/25/2016, at 78:9-20.) For these reasons, Guilty Plea Counsel
correctly assessed that his chances of getting the identification and
photograph suppressed were low and that a better strategy was to forgo a
motion to suppress in favor of negotiating a plea deal, especially in light of
the eyewitness testimony that the Commonwealth was prepared to offer
against Defendant. Cf. Commonwealth v. Little, 359 A.2d 788, 790 (Pa.
13
1976) ("[G]iven ... eyewitness testimony, counsel's advice to enter a plea
of guilty without pursuing the avenue of a motion to suppress is not ground
upon which to reasonably question counsel's stewardship."); see also
Commonwealth v. Chumley, 394 A.2d 497, 505 (Pa. 1978) ("Counsels'
failure to file frivolous motions cannot support a claim that counsels'
'ineffectiveness' induced [a] plea and rendered it invalid."). For these
reasons, Guilty Plea Counsel was not ineffective for failing to move to
suppress the photo identification.
In his Amended PCRA Petition, Defendant alleged that Guilty Plea
Counsel should have moved to dismiss the charges pursuant to Rule 600(A).
For purposes of determining the time within which trial
must be commenced pursuant to paragraph (A), paragraph
(C)(l) makes it clear that any delay in the commencement of
trial that is not attributable to the Commonwealth when the
Commonwealth has exercised due diligence must be excluded
from the computation of time. Thus, the inquiry for a judge in
determining whether there is a violation of the time periods in
paragraph (A) is whether the delay is caused solely by the
Commonwealth when the Commonwealth has failed to exercise
due diligence. See, e.g., Commonwealth v. Dixon, 589 Pa. 28,
907 A.2d 468 (2006); Commonwealth v. Matis, 551 Pa. 220, 710
A.2d 12 (1998). If the delay occurred as the result of
circumstances beyond the Commonwealth's control and despite
its due diligence, the time is excluded. See, e.g.,
Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990);
Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981).
Pa.R.Crim.P. 600 explanatory cmt.
Here, the record does not reflect any period of delay that was
attributable to the Commonwealth's lack of due diligence, let alone enough
14
to warrant a Rule 600 motion. Accordingly, Guilty Plea Counsel was not
ineffective for failing to pursue a Rule 600-based challenge.
Finally, the Court will address the issue that Defendant raises in issues
3-5 of his Concise Statement and that he attempted to raise in his pro se
petition filed on December 12, 2016, which the Court could not consider
because it was an improper hybrid filing. Defendant asserts that Attorney
Karam was ineffective for failing to present to the Court an affidavit in which
George J. Groll er, who left the victim's residence prior to the assault, states
that he did not see Defendant enter the residence that day, although he saw
two other males arriving as he was leaving. The affidavit also states that
the victim has, since the time of the assault, failed to mention Defendant's
name to Grolier when describing the individuals responsible for the assault.
First, the Court notes that, technically, Defendant has waived this claim on
appeal by not raising it in this Court. While Defendant attempted to raise
the issue in his petition filed on December 12, 2016, that petition was a legal
nullity because Defendant was represented by counsel when he filed it. See
Commonwealth v. Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2015). In addition,
Defendant did not mention the issue in his Response to the Court's Notice.
Accordingly, it is waived and cannot entitle him to appellate relief.
Even if Defendant had preserved the issue, his argument before this
Court would necessarily have been that Attorney Karam should have
requested leave to amend the Amended PCRA Petition to include a claim of
15
after-discovered evidence relating to the Groller affidavit. However, there
would have been no merit to such a claim. Thus, Attorney Karam was not
ineffective for failing to raise the issue in this Court.
In Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592(1973), the supreme court [of Pennsylvania] held that a court
should allow the withdrawal of a guilty plea after sentencing to
correct a manifest injustice to the defendant. Subsequently, the
supreme court determined that any after-discovered evidence
which would justify a new trial would also satisfy the
requirements of Starr, supra. Commonwealth v. Peoples, 456
Pa. 274, 319 A.2d 679 (1974). For a defendant to be entitled to
a new trial where he has produced after-discovered evidence,
"the evidence must have been discovered after the trial and
must be such that it could not have been obtained at the trial by
reasonable diligence, must now be cumulative or merely
impeach credibility, and must be such as would likely compel a
different result." Commonwealth v. Bulted, 443 Pa. 422, 279
A.2d 158 (1971).
Commonwealth v. Crawford, 427 A.2d 166, 175 (Pa. Super. 1981).
Here, an after-discovered-evidence claim based upon the Grolier
affidavit would have failed under the final prong, in that it would not have
compelled a different result had Defendant gone to trial. In Commonwealth
v. Abu-Jamal, 720 A.2d 79, 104-07 (Pa. 1998), the court considered after-
discovered evidence claims relating to several witnesses. In rejecting the
claims, the court's prevailing rationale was that the testimony of the after-
discovered witnesses, even taken as true, would not have changed the result
of the defendant's trial because their testimony conflicted with that of other,
stronger eyewitnesses. The court stated:
16
Respecting Appellant's claim that all of these witnesses
and/or their PCRA proffered testimony constituted "after-
discovered evidence," we note that ... there remains the ...
unequivocal testimony of [Eyewitness 1] and [Eyewitness 2],
both of, whom presented damaging testimony at trial, which
testimony renders it unlikely that any of the above claims, either
singularly or cumulatively, could compel a different verdict.
Id. at 107 n.34.
Here, the Commonwealth was similarly prepared to offer "damaging"
eyewitness testimony implicating Defendant. More specifically, the
Commonwealth was prepared to offer the testimony of the victim, Mitch
Brown, who positively identified Defendant as the assailant who penetrated
his anus with a broomstick and who held a large butcher knife to his throat
while threatening to slit his throat and to cut off his penis. (Criminal Compl.,
Aff. of Probable Cause ,i,i 12-13, 24, 39; N.T., 10/25/2016, at 60:17-61:3.)
Another Commonwealth witness, Matt Simard, arrived at the victim's home
during the attack and was told by the assailants that the victim was not
home. (Criminal Cornpl., Aff. of Probable Cause ,i 16.) Simard positively
identified Defendant as being one of the two assailants. (Id. ,i 27.) Finally,
Defendant's accomplice was granted immunity and was prepared to testify
against Defendant. (N.T., 10/25/2016, at 61:4-17.) Therefore, assuming
for the sake of argument that Defendant chose to go to trial, the purported
testimony of Grolier to the effect that he did not see Defendant "entering"13
13
The Court notes that just because Groller did not see Defendant "entering" the
victim's home when he saw two other males arrive that day does not mean that Defendant
17
the victim's residence that day and that the victim did not mention
Defendant's name to Groller when describing the assailants after the attack"
would clearly have been outweighed by the testimony of numerous other
witnesses who saw Defendant commit the crimes charged or saw him at the
scene of the crime. As a result, for purposes of an after-discovered evidence
claim related to Grolier, Defendant would have been unable to sustain his
burden of proving that Groller's testimony would have compelled a different
result. For this reason, Attorney Karam was not ineffective for failing to
request permission to amend Defendant's PCRA Petition to raise such a
claim.
BY THE COURT:
ANTHONY S. BELTRAMI, J.
was not at the victim's home at the time of the assault. This is especially so here because
the victim described three males, including Defendant, as entering his residence prior to the
assault. (Criminal Compl., Aff. of Probable Cause ,i,i 8-12.)
14
It should be noted that the victim did not know Defendant's name and only knew him
by his street name, "T-Ross." (Id. ,i,i 6-7, 12-13, 39.)
18