Com. v. Copes, L. ( 2018 )

J-S64022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEONARD H. COPES :
:
Appellant : No. 4015 EDA 2017
Appeal from the PCRA Order November 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010727-2010
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 11, 2018
Appellant, Leonard H. Copes, appeals pro se from the order entered on
November 20, 2017, dismissing his petition for relief filed under the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.
On direct appeal, the trial court ably summarized the underlying facts
of this case:
On February 25, 2010, at approximately [9:00] p.m., Jakirah
Cromwell was walking to a friend’s house in South
Philadelphia when she saw [Appellant], whom she had seen
around the neighborhood, standing with another man whom
she did not know. [Appellant] asked her if she knew “the two
boys who were walking down Taney.” Ms. Cromwell told
[Appellant] that she did not know whom he was talking
about. [Appellant] then told Ms. Cromwell not to walk down
Taney Terrace. When Ms. Cromwell asked him why not,
[Appellant] responded “because I told you not to.” After Ms.
Cromwell stated “[y]ou know where I’m going,” [Appellant]
told Ms. Cromwell to “[j]ust hurry up and go, I’m trying to
help you out.” . . .
J-S64022-18
As Ms. Cromwell started to walk down Taney Terrace, [she
saw that Appellant] had a gun in his hand and the unidentified
man with him had a gun on his hip. While Ms. Cromwell
walked away, [Appellant] and the other man stayed on the
corner of Jackson Street and Taney Terrace “looking around.”
While walking down Taney Terrace, Ms. Cromwell heard a
gunshot and ducked behind a car. She saw one person
running and another person fall to the ground. She then saw
“flashes” from a gun as [Appellant] and the unidentified man
ran past the car behind which she was hiding, and saw the
man with [Appellant] fire another shot at the man who had
already collapsed. She heard [Appellant] then say, “[c]ome
on, what you doing, he already fell.” Ms. Cromwell got up and
ran to her aunt’s house.
Sean Griffith and Khalil Thorpe had been walking from Mr.
Griffith’s grandfather’s home toward the home of Chanae
Floyd, Mr. Griffith’s girlfriend. As they neared her house,
reaching the intersection of Point Breeze and Taney Terrace,
Mr. Griffith heard someone begin firing shots at them from
behind. Mr. Griffith turned around and saw [Appellant]
holding a gun and shooting at him and Mr. Thorpe. Mr.
Griffith managed to run away without being shot, despite
hearing eight shots fired in his and Mr. Thorpe’s direction.
After he got several blocks away and saw that Mr. Thorpe
was not with him, Mr. Griffith called Ms. Floyd and asked her
to look outside her house to see if she could see Mr. Thorpe.
Ms. Floyd ran outside and saw Mr. Thorpe lying in the street.
She called an ambulance and stayed with Mr. Thorpe until
police arrived.
When police arrived, there were no signs of life from Mr.
Thorpe. He was transported to the University of Pennsylvania
Hospital, where he was pronounced dead at 9:40 p.m. He
had one gunshot wound to the abdomen, one to the chest,
and one to the arm.
Ms. Floyd was interviewed by homicide detectives and
informed them of Mr. Griffith’s phone call and the fact that
he had been with Mr. Thorpe when he was shot. Detectives
then interviewed Mr. Griffith, who at first denied seeing who
shot at himself and Mr. Thorpe, claiming that the shooter was
covering his face with his arm. During his second interview,
Mr. Griffith told detectives that it was [Appellant], whom he
-2-
J-S64022-18
had known for years, who had shot at him and killed Mr.
Thorpe. He positively identified [Appellant] from a photo
array. Jakirah Cromwell also gave a statement to police, in
which she described what she had seen and heard, and
identified [Appellant] from a photo array.
Trial Court Opinion, 7/15/12, at 2-4 (internal citations omitted).
The jury found Appellant guilty of first-degree murder, possessing an
instrument of a crime, and attempted murder.1 On December 15, 2011, the
trial court sentenced Appellant to serve a mandatory term of life in prison
without the possibility of parole. We affirmed Appellant’s judgment of
sentence on August 2, 2013 and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on December 31, 2013.
Commonwealth v. Copes, 83 A.3d 1055 (Pa. Super. 2013) (unpublished
memorandum) at 1-22, appeal denied, 83 A.3d 413 (Pa. 2013).
Appellant filed the current, pro se PCRA petition on April 11, 2014.
Within this petition, Appellant claimed that his trial counsel was ineffective for:
1) denying Appellant his right to face his accuser; 2) failing to conduct a proper
pre-trial investigation; 3) failing to call certain alibi witnesses; 4) failing to
request a cautionary jury instruction regarding identification testimony; and,
5) failing to object when the Commonwealth failed to correct the record. See
Appellant’s Pro Se PCRA Petition, 4/11/14, at “Exhibit 1.”
____________________________________________
1 18 Pa.C.S.A. §§ 2502(a), 907(a), and 901(a), respectively.
-3-
J-S64022-18
Appellant then filed three successive pro se amendments to his petition.
Although some of Appellant’s writing is difficult to understand, we discern the
following claims from the three amendments:
1) The evidence was insufficient to support his convictions
because:
A) eyewitness Sean Griffith did not take the stand; and,
B) the Commonwealth improperly used preliminary hearing
transcripts against Appellant, in violation of Appellant’s right
to confront his accuser.2
2) The trial court erred when it:
A) refused to suppress witness Sean Griffith’s identification,
as the identification was not credible;3
B) failed to properly instruct the jury that:
i) the jury should consider whether the witness knew
or had contact with the defendant before the event;
ii) the jury must “judge whether the witness was
under stress, whether the witness gave a description,
and how that description compares to the defendant;”
iii) the jury must consider “how much time passed
between the event and the identification;” and,
iv) the jury must judge whether the witness ever
changed his mind about the identification;4
____________________________________________
2 See Appellant’s First Amended Pro Se PCRA Petition, 6/26/14, at “Exhibit 2.”
3 See id.
4 See id. at “Exhibit 5.”
-4-
J-S64022-18
C) permitted the jury to review trial testimony during its
deliberation.5
3) “Violation of extrinsic evidence”:
A) the statements that witnesses Jakirah Cromwell and
Sean Griffith made to the police were coerced.6
4) Ineffective assistance of counsel claims:
A) the Commonwealth failed to produce impeachment
evidence and counsel was ineffective for failing to obtain
impeachment evidence on Sean Griffith;
B) direct appeal counsel failed to argue that the
Commonwealth did not prove that Appellant possessed the
specific intent to kill;
C) trial counsel failed to remind the trial court to repeat a
curative instruction to the jury;
D) trial counsel failed to raise a weight of the evidence claim
in Appellant’s post-sentence motion;7 and,
E) trial counsel was ineffective for failing to interview Sean
Griffith, who recanted his prior identification of Appellant as
the shooter.8
The PCRA court appointed counsel to represent Appellant during the
proceedings. See Entry of Appearance, 11/4/14, at 1. However, appointed
counsel later filed a no-merit letter and a request to withdraw as counsel,
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
____________________________________________
5 See Appellant’s Second Amended Pro Se PCRA Petition, 9/8/14, at 3.
6 See Appellant’s First Amended Pro Se PCRA Petition, 6/26/14, at “Exhibit 2.”
7 See id. at “Exhibit 3.”
8See Appellant’s Third Amended Pro Se PCRA Petition, 12/17/14, at “Exhibit
9.”
-5-
J-S64022-18
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See
Counsel’s First No-Merit Letter and Petition to Withdraw, 7/28/16, at 1-13;
Counsel’s Second No-Merit Letter and Petition to Withdraw, 12/2/16, at 1-9;
Counsel’s Third No-Merit Letter and Petition to Withdraw, 3/3/17, at 1-6;
Counsel’s Fourth No-Merit Letter and Petition to Withdraw, 11/9/17, at 1-5.
On April 28, 2017, the PCRA court notified Appellant that it intended to
dismiss the PCRA petition in 20 days, without holding a hearing. PCRA Court
Order, 4/28/17, at 1; Pa.R.Crim.P. 907(1). Appellant filed a pro se response
to the PCRA court’s Rule 907 notice; however, Appellant did not include any
additional claims in his response. See Appellant’s Pro Se Response to Rule
907 Notice, 5/4/17, at 1.
The PCRA court finally dismissed Appellant’s PCRA petition on November
20, 2017 and, in that same order, the PCRA court granted counsel’s petition
to withdraw. PCRA Court Order, 11/20/17, at 1. After Appellant filed a timely
notice of appeal, the PCRA court ordered Appellant to file and serve a concise
statement of errors complained of on appeal in 21 days, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). PCRA Court Order,
12/13/17, at 1. Appellant filed his initial Rule 1925(b) statement on January
2, 2018. He raised one claim in this statement:
The PCRA court had committed error when the court denied
[Appellant’s] PCRA without hearing when the claim presented
possess merit.
Appellant’s Rule 1925(b) Statement, 1/2/18, at 1.
-6-
J-S64022-18
On March 22, 2018 – or, over one-and-a-half months later – Appellant
filed a “Motion to Supplement Issues to be Asserted on Appeal.” See
Appellant’s Motion to Supplement Rule 1925(b) Statement, 3/22/18, at 1-3.
Within the motion, Appellant raised a number of additional claims he wished
to raise on appeal. See id. However, the PCRA court did not issue any order
in response to Appellant’s motion.
On appeal, Appellant raises a number of claims. Nevertheless, all of
Appellant’s claims on appeal are waived, as Appellant’s initial Rule 1925(b)
statement was too vague to allow the PCRA court to identify the issues raised
on appeal and the PCRA court did not grant Appellant’s untimely Motion to
Supplement Issues to be Asserted on Appeal. See PCRA Court Opinion,
3/20/18, at 5 (concluding Appellant’s claim that the PCRA court erred when it
“denied [the] PCRA [petition] without [a] hearing when the claim presented
possess[ed] merit” was waived, as the PCRA court had to “guess” at
Appellant’s precise claim); see also Commonwealth v. Dowling, 778 A.2d
683, 686-687 (Pa. Super. 2001) (“a concise statement which is too vague to
allow the court to identify the issues raised on appeal is the functional
equivalent of no concise statement at all”) (internal capitalization omitted);
Commonwealth v. Jackson, 900 A.2d 936, 939 (Pa. Super. 2006) (“in
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005), the Supreme Court
reaffirmed the bright-line rule established in Commonwealth v. Lord, 719
A.2d 306 (Pa. 1998), which requires waiver whenever an appellant fails to
raise an issue in a court-ordered [Rule] 1925(b) statement. In Castillo, the
-7-
J-S64022-18
Supreme Court determined that issues which are raised in an untimely [Rule]
1925(b) statement will be deemed waived even if the trial court addresses the
issues in its [Rule] 1925(a) opinion. . . . Castillo's prohibition against the
filing of untimely [Rule] 1925(b) statements extends to the filing of untimely
supplemental [Rule] 1925(b) statements without leave of court”).9
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/18
____________________________________________
9 We note that Pennsylvania Rule of Appellate Procedure 1925(c)(3) provides:
If an appellant in a criminal case was ordered to file a [Rule
1925(b)] Statement and failed to do so, such that the
appellate court is convinced that counsel has been per se
ineffective, the appellate court shall remand for the filing of
a Statement nunc pro tunc and for the preparation and filing
of an opinion by the judge.
Pa.R.A.P. 1925(c)(3).
However, Rule 1925(c)(3) does not apply in this case because: 1) Appellant
actually filed a timely Rule 1925(b) statement and 2) Appellant is pro se. See
Commonwealth v. Fletcher, 986 A.2d 759, 773-774 (Pa. 2009) (holding
that a pro se defendant cannot assert his own ineffectiveness).
-8-