Com. v. Thomas, R. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ROBERT HARRY THOMAS, : No. 1191 MDA 2015
:
Appellant :
Appeal from the PCRA Order, June 23, 2015,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0000837-2009
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 25, 2016
Robert Harry Thomas appeals, pro se, from the June 23, 2015 order
dismissing his first petition under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.
A previous panel of this court articulated the following facts on direct
appeal:
The record reveals that, in the early morning
hours of May 10, 2009, Appellant broke into the
home of his ex-girlfriend (“the victim”), bound her
wrists, ankles and face in duct tape, threatened her
with a knife, and caused her to fear for her life.
After several hours, Appellant released the victim.
She had minor injuries to her face, neck, and wrists.
Later that morning, the victim went to a neighbor
and reported the incident; the neighbor contacted
the police. Appellant was arrested and charged with
one count each of kidnapping, burglary, terroristic
threats, and false imprisonment.
* Former Justice specially assigned to the Superior Court.
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The trial court summarized the procedural
history of this case as follows:
In a two-day trial on August 30 and
August 31, 2010, [Appellant] was
convicted by a jury of one count of
burglary, one count of terroristic threats,
and one count of false imprisonment.
[Appellant] was also charged with one
count of kidnapping on which the jury
was hung. This Court sentenced
[Appellant] on December 8, 2010 but
vacated its sentence on January 19,
2012 after holding that the sentence
imposed was illegal. The Court re-
sentenced [Appellant] on February 29,
2012. Post-sentence motions were filed
by [Appellant] on March 12, 2012 and a
hearing was scheduled before this Court
on March 30, 2012. On March 16, 2012,
[Appellant] filed a pro se motion
requesting new counsel be appointed to
represent him in an appeal. The Court
appointed new counsel for [Appellant] on
March 23, 2012 and provided counsel
twenty days to make any amendments
to the post-sentence motions previously
filed. New counsel filed an amended
post-sentence motion on April 13, 2012.
The Commonwealth filed an Answer to
the original post-sentence motion on
April 27, 2012 as well as an Answer to
the amended post-sentence motion on
May 3, 2012. The Court issued a Post-
Sentence Opinion on July 9, 2012
denying [Appellant’s] post-sentence
motions.
Trial Court Opinion, 9/27/12, at 1-2 (footnotes
omitted). The record further reveals that, upon
resentencing, the trial court reduced the length of
Appellant’s aggregate term of incarceration to 10 to
20 years and imposed Laboratory User’s Fees
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(“Lab Fees”) totaling $4,077.00, pursuant to
42 Pa.C.S.A. § 1725.3 Order of Court, 2/29/12.
Commonwealth v. Thomas, No. 1412 MDA 2012, unpublished
memorandum (Pa.Super. filed May 30, 2013). This court affirmed the
February 29, 2012 judgment of sentence, and our supreme court denied
appellant’s petition for allowance of appeal on March 11, 2014. See
Commonwealth v. Thomas, 87 A.3d 319 (Pa. 2014).
Appellant timely filed the instant PCRA petition on December 3, 2014.
On May 22, 2015, the trial court granted appellant’s counsel’s petition to
withdraw pursuant to the requirements set forth by Turner and Finley1 and
notified appellant of the court’s intentions to dismiss the PCRA petition
without a hearing pursuant to Pa.R.Crim.P. 907(1). The trial court dismissed
appellant’s PCRA petition on June 23, 2015. On July 9, 2015, appellant filed
a notice of appeal. The trial court ordered appellant to produce a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
on July 13, 2015, and appellant complied on July 30, 2015.
Appellant raises the following issues on appeal:
1. Was Appellant denied effective assistance of
counsel before trial and after said trial and
during the trial[?]
2. [Were] there Procedural Errors by the trial
court[?]
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 607 (Pa.Super. 1988) (en banc).
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3. Did Appellant receive a fair trial in accordance
with Due Process standards . . . [?]
Appellant’s brief at 4.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.] Id. §
9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding.” Id. §
9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
As a prefatory matter, although this Court is willing
to construe liberally materials filed by a pro se
litigant, pro se status generally confers no special
benefit upon an appellant. Commonwealth v.
Maris, 427 Pa.Super. 566, 629 A.2d 1014, 1017 n. 1
(1993). Accordingly, a pro se litigant must comply
with the procedural rules set forth in the
Pennsylvania Rules of the Court. Id. This Court
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may quash or dismiss an appeal if an appellant fails
to conform with the requirements set forth in the
Pennsylvania Rules of Appellate Procedure. Id.;
Pa.R.A.P. 2101. For example,
The argument [section] shall be divided
into as many parts as there are
questions to be argued; and shall have
at the head of each part-in distinctive
type or in type distinctively displayed-the
particular point treated therein, followed
by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
Commonwealth v. Lyons, 833 A.2d 245, 251-252 (Pa.Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005).
In the instant appeal, appellant raises three questions presented, yet
presents an argument that is separated into four sections. Much like the
defendant in Lyons, appellant’s argument is “rambling, repetitive, and often
incoherent.” See id. at 252. As the Lyons court did, we shall extract the
arguments that can be reasonably construed from appellant’s argument and
address them “in the interest of justice.” See id.
Under his first issue, appellant alleges ineffective assistance of
counsel. Specifically, appellant makes a litany of allegations regarding his
counsel before and during trial, then-Chief Public Defender Michael Toms
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and James Reed, Esq.2 He alleges, inter alia, that Attorneys Toms and
Reed failed to adequately communicate with appellant; that Attorney Reed
did not notify appellant of a plea offer from the Commonwealth; and that
during trial, Attorney Reed failed to adequately impeach the
Commonwealth’s witnesses.
The governing legal standard of review of ineffective
assistance of counsel claims is well settled:
[C]ounsel is presumed effective,
and to rebut that presumption, the PCRA
petitioner must demonstrate that
counsel’s performance was deficient and
that such deficiency prejudiced him.
Strickland v. Washington, 466 U.S.
668 (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, 527 A.2d
973, 975 (Pa. 1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel’s
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner’s evidence fails to satisfy any
one of these prongs.
2
Attorney Toms was originally appointed by the trial court to represent
appellant. Appellant requested to be represented by a different attorney,
and the trial court granted Attorney Toms’ motion to withdraw as counsel on
January 12, 2010. The trial court appointed Attorney Reed to represent
appellant on February 19, 2010. Stephen Kulla, Esq., represented appellant
in the interim and is not the subject of any of appellant’s allegations of
ineffective assistance of counsel.
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Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
2012) (citations formatted). Furthermore, “[i]n
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).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).
Here, appellant does not set forth and substantively discuss each
Pierce prong as required by Perzel. Instead, appellant makes conclusory
allegations of ineffective assistance by Attorneys Toms and Reed. A careful
review of the record indicates that appellant’s allegations are lacking any
arguable merit. Moreover, aside from a cursory reference to the Pierce
prongs in his brief, appellant does not address how Attorneys Toms’ and
Reed’s actions or inactions either lacked an objectively reasonable basis or
prejudiced appellant. Therefore, we find that appellant’s first issue is
without merit.
In appellant’s second issue for our review, he avers that the trial court
committed procedural errors. (Appellant’s brief at 4.) At no point in his
argument does appellant allege any specific procedural errors committed by
the trial court, aside from the due process issues that appellant addresses in
his third issue, which we shall address infra. “‘The failure to develop an
adequate argument in an appellate brief may [] result in waiver of the claim’
under Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140
(Pa.Super. 2007), appeal denied, 982 A.2d 509 (Pa. 2007), quoting
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Commonwealth v. Gonzalez, 608 A.2d 528, 531 (Pa.Super. 1992).
Because appellant failed to develop his argument as to alleged procedural
errors committed by the trial court, we find the issue to be waived.
In his third and final issue, appellant avers that he did not receive a
fair trial because of due process violations allegedly committed by the trial
court. (Appellant’s brief at 4.) Before we can address the merits of
appellant’s claim, we must first look to whether appellant’s claims have been
previously litigated or waived. The PCRA requires that, in order for a
petitioner to be eligible for relief, his or her claim cannot have been
“previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). The PCRA
mandates 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.” 42 Pa.C.S.A. § 9544(b). Our
supreme court has stated that “a PCRA petitioner’s waiver will only be
excused upon a demonstration of ineffectiveness of counsel in waiving the
issue.” Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). An
issue has been previously litigated if, “the highest appellate court in which
[appellant] could have had review as a matter of right has ruled on the
merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2).
Here, appellant raised the issue on direct appeal; however, this court
found his issue was waived because appellant had failed to raise the issue
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with the trial court. See Thomas, No. 1412 MDA 2012 at *7. This court,
however, did note the following in an alternative holding:3
Even if we did not deem this issue to be waived, we
would deny relief. Prejudice is presumed in certain
criminal contexts where a structural error occurs.
See Arizone v. Fulminate, 499 U.S. 279, 310
(1991) (defining a structural error as one “affecting
the framework within which the trial proceeds, rather
than simply an error in the trial process itself.”);
Commonwealth v. Johnson, 600 Pa. 329, 966
A.2d 523, 538 n.6 (2009) (recognizing that this
Court has presumed prejudice where a constitutional
error has caused a total failure in the relevant
proceeding). These limited circumstances involving
structural errors include the right to counsel, see
Gideon v. Wainwright, 372 U.S. 335 (1963); the
right to a unanimous jury verdict beyond a
reasonable doubt, see Sullivan v. Louisiana, 508
U.S. 275 (1993); and the right to represent one’s
self, see McKaskle v. Wiggins, 465 U.S. 168(1984). The jury issue presented by Appellant does
not implicate a structural error or a total failure in
the relevant proceeding.
Furthermore, the Pennsylvania Supreme Court has
held that “one who claims that he has been denied a
fair trial because of the pre-trial publicity must show
actual prejudice in the empaneling of the jury.”
Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d
958 ([2001]), cert. denied, 535 U.S. 1101 (2002).
Accord, Carter by Carter v. U.S. Steel Corp., 529
Pa. 409, 604 A.2d 1010 (1992) (relying on criminal
cases to resolve a question of extraneous influence
on a civil jury; “Once the existence of a potentially
3
Alternative holdings are valid holdings that constitute the law of the case.
See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009) (where the
Superior Court determined that Reed’s claims were waived, and also
determined that even if the claims had not been waived, they were without
merit, and explained the basis for its conclusions, the alternative holding
that Reed’s claim regarding the admission of prior bad acts testimony was
meritless was a valid holding that constituted the law of the case).
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prejudicial extraneous influence has been established
by competent testimony, the trial judge must assess
the prejudicial effect of such influence.”). Because
Appellant presents no evidence of extraneous
influences and no evidence that the jury empaneled
in this matter was actually prejudiced, he would not
be entitled to relief.
Id. at *8 n.4.
At no point does appellant allege that his failure to raise any due
process issues with the trial court was a result of ineffective assistance of
counsel. Therefore, appellant is not eligible for relief on this issue because
the matter has been previously litigated.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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