Com. v. Cash, O. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OMAR SHARIFF CASH
Appellant No. 478 EDA 2015
Appeal from the PCRA Order February 5, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003526-2008
BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 28, 2015
Appellant, Omar Shariff Cash, appeals pro se from the February 5,
2015 order dismissing his timely first petition, as amended, filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
careful consideration, we affirm.
Appellant is currently serving an aggregate sentence of life in prison
without the possibility of parole, entered on June 2, 2010 and amended,
pursuant to post-sentence motions, on November 12, 2010. Appellant’s
sentence followed his conviction by a jury for first-degree murder, carrying a
firearm without a license, simple assault, and multiple counts each of
robbery, rape, involuntary deviate sexual intercourse, kidnapping, and false
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imprisonment.1 This Court affirmed the judgment of sentence on December
14, 2011 and our Supreme Court denied Appellant’s petition for allowance of
appeal on May 31, 2012. Commonwealth v. Cash, 40 A.3d 191 (Pa.
Super. 2011) (unpublished memorandum), appeal denied, 47 A.3d 844 (Pa.
2012).
The PCRA court summarized the procedural history of Appellant’s PCRA
action as follows.
Appellant filed a timely PCRA petition pro se on
August 15, 2012, in which he asserted, primarily,
that his copy of the notes of testimony had been
taken from him by correctional authorities.
Appellant also included a discovery motion within
said PCRA petition. On October 12, 2012, [the PCRA
court] issued an Order appointing Stuart Wilder,
Esquire, as Appellant’s PCRA counsel.
After his appointment, Mr. Wilder filed a
Petition to Amend [Appellant’s] PCRA Petition
wherein it was asserted that Appellant’s trial counsel
was ineffective. The crux of this assertion centered
on counsel’s failure to object to prosecutorial
statements, as well as counsel’s failure to obtain
additional discovery relating to the female victim’s
(“MCDA”) U-Visa[2] application. [The PCRA court]
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1
18 Pa.C.S.A. §§ 2501(a), 6106(a)(1), 2701(a)(3), 3701(a)(1)(i), (ii) & (iii),
3121(a)(1) & (2), 3123(a)(1) & (2), 2901(a)(2) & (3), 2903(a), respectively.
The trial court conducted a subsequent waiver trial at which it found
Appellant guilty of persons not to possess firearms, 6105(a)(1).
2
The U-Visa is a non-immigrant visa designated for victims of human
trafficking crimes. “The ‘U’ Visa is also a non-immigrant visa that can be
sought by victims of certain crimes who are currently assisting or have
previously assisted law enforcement in the investigation or prosecution of a
crime, or who are likely to be helpful in the investigation or prosecution of
criminal activity.”18 Pa.C.S.A. § 3054, cmt.
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granted Appellant’s Petition to Amend. On March 14,
2013, a first PCRA hearing was held.
Appellant filed a pro se motion for self-
representation on March 26, 2013. On April 1, 2013,
Appellant filed a pro se Petition to Amend his PCRA
Petition which was granted by [the PCRA court].
Therein, Appellant alleged that trial counsel was
ineffective for failing to request a limiting instruction
to the jury regarding “Bad Acts Evidence.” Appellant
additionally alleged prosecutorial misconduct.
Appellant contended that the Commonwealth
withheld pertinent documents relating to MCDA’s U-
Visa, failed to disclose character evidence with
regard to MCDA that could have served as rebuttal
evidence, and that MCDA’s credibility was improperly
bolstered by the Commonwealth’s opening and
closing remarks.
On May 15, 2013, Appellant filed pro se with
[the PCRA court] another Motion to Amend his PCRA
Petition. On June 10, 2013, a second PCRA hearing
was held before [the PCRA court]. Appellant
knowingly waived his right to counsel at this hearing
and elected to proceed pro se with Mr. Wilder
functioning as stand-by counsel.
Following the second PCRA hearing, Appellant
filed Petitions to Amend his PCRA Petition on July 3,
2013, and again on August 21, 2013. These were
both filed pro se and raised no new material issues.
On August 22, 2013, [the PCRA court] granted
[Appellant’s] July 3, 2013 motion thereby allowing
him to amend his PCRA Petition and include any and
all issues that Appellant wished to raise.
On December 12, 2013, Appellant filed a
Motion to Supplement Amended PCRA. Appellant
alleged that the district attorney conspired with
police officers to prevent the disclosure of potentially
exculpatory statements made by MCDA.
Furthermore, Appellant claimed that the prosecutor
intentionally elicited perjured testimony from MCDA.
Lastly, Appellant claimed that trial counsel was
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ineffective in its failure to discover and challenge
MCDA’s “extrajudicial” statements and that counsel
failed to test the prosecutor’s case effectively.
Appellant was permitted to proceed on these
additional issues.
After the third PCRA hearing was conducted on
December 27, 2013, [the PCRA court] issued an
Order on January 23, 2014, denying Appellant’s
request for additional DNA testing, as well as
Appellant’s request for an independent private
investigator. [The PCRA court] granted Appellant’s
request at the hearing relating to statements made
by MCDA, in that [the PCRA court] ordered the
Commonwealth to determine whether MCDA made
any other statements to law enforcement personnel
that had not been disclosed to Appellant.
Additionally, [the PCRA court] ordered that the
Commonwealth provide any such statements to
Appellant.
On January 28, 2014, Appellant filed yet
another Motion to Amend PCRA Petition Pursuant to
Pa.R.Crim.P[.] 905(a). Appellant’s motion alleged
that he was denied his right to self-representation
when trial counsel informed Appellant that he would
not be granted a continuance unless Appellant
relinquished his pro se status. Appellant also
maintained that trial counsel were ineffective in not
properly testing DNA swabs in preparation for trial,
and by their failure to consult appropriate DNA
experts. Additionally, Appellant alleged his counsel
on direct appeal were ineffective in failing to petition
for post-trial DNA testing. These claims were
supplemental to Appellant’s prior allegations
pertaining to MCDA’s extrajudicial statements and U-
Visa application.
On April 22, 2014, a fourth hearing on
Appellant’s PCRA was conducted. On May 28, 2014,
[the PCRA court] issued an Order which directed
Appellant to file an Amended PCRA Petition and
specify those matters Appellant was still pursuing
with respect to PCRA relief. This Order was issued to
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provide clarity due to the numerous amended
petitions filed by Appellant. In response, on June
26, 2014, Appellant filed his final Amended PCRA
Petition.
On September 22, 2014, a fifth PCRA hearing
was held and at the conclusion of the hearing [the
PCRA court] issued a briefing schedule. On February
5, 2015, following the submission of briefs by both
parties, [the PCRA court] issued an Order denying
Appellant’s Amended PCRA Petition.
PCRA Court Opinion, 4/27/15, at 8-11.
On February 17, 2015, Appellant filed a timely pro se notice of
appeal.3 On appeal, Appellant raises the following issues for our review.4
1. Did the [PCRA c]ourt err, and commit
reversible error when it omitted facts of record upon
which Appellant’s claims are predicated and
completely fail [sic] to address claims of Appellant
that are properly preserved and presented to the
[PCRA c]ourt for review?
2. Did [t]rial [c]ounsel constructively deny
Appellant’s constitutional right to free choice self-
representation?
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3
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
4
In his Rule 1925(b) concise statement of errors, Appellant listed 13 issues.
Appellant only includes two of these in his “questions presented” and
“argument” sections of his pro se appellate brief (Appellant’s first listed
question is a general one, encompassing his three subsequent specific
allegations of error). Accordingly, those issues not briefed are deemed
waived. See Appellant’s Concise Statement of Errors Complained of on
Appeal, 3/16/15, 1-2; Appellant’s Brief at 7; see also Commonwealth v.
LaCava, 666 A.2d 221, 228 n.9. (Pa. 1995) (noting issues raised in a
1925(b) statement but not included in an appellate brief are waived).
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3. Did [t]rial/[d]irect [a]ppeal [c]ounsel render
ineffective assistance of counsel when counsel failed
to raise the meritorious claim of prosecutorial
misconduct, during pre-trial, trial and/or direct
appeal?
(a). Did the Commonwealth’s suppression
and affirmative misrepresentation of material
evidence regarding the actual benefits it’s sole-
witness (M.C.D.A.) was expecting and received
in exchange for testimony violate due process?
Appellant’s Brief at 7.
We first acknowledge the following tenets guiding our review.
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted).
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted,
105 A.3d 658 (Pa. 2014). Additionally, in order to be eligible for PCRA relief,
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a petitioner must plead and prove by a preponderance of the evidence that
his conviction or sentence arose from one or more of the errors listed at 42
Pa.C.S.A. § 9543(a)(2). “[A]ll constitutionally-cognizable claims of
ineffectiveness are reviewable under the PCRA.” Commonwealth v.
Cappello, 823 A.2d 936, 941 (Pa. Super. 2003); See 42 Pa.C.S.A.(a)(2)(ii).
These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3).
When reviewing a claim of ineffective assistance of counsel, we apply
the following test, first articulated by our Supreme Court in Commonwealth
v. Pierce, 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts
presume that counsel was effective, and place upon
the appellant the burden of proving otherwise.
Counsel cannot be found ineffective for failure to
assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
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the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 330 (Pa. 2011).
Appellant first argues that trial counsel was ineffective for coercing him
or improperly inducing him to waive his right to self-representation. By way
of background, Appellant recounts that he had petitioned to proceed pro se
in his trial. Appellant’s Brief at 13-14. Following a Grazier5 hearing, the
trial court granted Appellant’s petition on November 6, 2009, and appointed
stand-by counsel. Id. at 14, citing N.T. 11/4/09, at 1-12. Appellant asserts
that upon consultation with stand-by counsel he agreed to waive his right to
self-representation with the understanding that counsel would “adopt
Appellant’s guilt phase defense strategy,” and that allowing stand-by counsel
to represent him was necessary to secure a continuance desired by
Appellant and previously denied by the trial court. Id. at 14. Purportedly in
reliance on those representations, Appellant reversed his decision to proceed
pro se on January 8, 2010. Id. Appellant further avers that the subsequent
appointment of additional counsel for the guilt phase of trial resulted in co-
counsel focusing on the anticipated penalty phase of Appellant’s case at the
expense of his guilt phase strategy. Id. at 15-16. Accordingly, Appellant
avers his waiver of self-representation was “the result of coercion and
deception and therefore invalid.” Id., citing Commonwealth v. Bryant,
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5
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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855 A.2d 726 (Pa. 2004) (noting waiver of constitutional rights, including the
right to self-representation, must be knowing, intelligent and voluntary).
Concerning the prejudice prong of the Pierce test, Appellant argues as
follows.
[W]hen a defendant seeks to collaterally attack his
waiver on the grounds that it was caused by the
ineffective assistance of his trial counsel, to prove
prejudice, he must demonstrate a reasonable
probability that but for counsel’s constitutionally
deficient service, the outcome of the waiver
proceeding would have been different, i.e., that he
would not have waived his right.
Id. at 17.
Appellant conflates his decision to waive his right to self-
representation, which the record clearly establishes was voluntary,
intelligent and knowing, with his dissatisfaction with counsel’s overall
performance. As noted by the PCRA court, Appellant fully understood the
ramifications of self-representation and had been permitted to proceed pro
se. Trial Court Opinion, 4/27/15, at 18-19. Accordingly, “[s]uch a right was
not denied Appellant in his own case. In fact, it was Appellant himself who
requested that Mr. Goodwin serve as counsel at trial, rather than functioning
only as stand-by counsel.” Id. at 18. As further recognized by the PCRA
court, “Appellant offered no evidence which would support an inference that
trial counsel’s strategy prejudiced him in any way.” Id. Appellant includes
no explanation of what his guilt phase strategy was or how it differed from
counsels’, much less, how that difference prejudiced him. During trial,
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Appellant did not seek to reassert his right to self-representation or express
dissatisfaction with the conduct of counsel at trial. Appellant’s attempt to
recast his disappointment with the outcome of the trial into one concerning
the voluntariness of his decision to accept counsel is unavailing.
“It is well established that a defendant can waive the
right of self-representation after asserting it.” Buhl
v. Cooksey, 233 F.3d 783, 800 (3d Cir. 2000)
(citing cases); see also Wilson v. Walker, 204
F.3d 33, 38 (2d Cir. 2000) (petitioner abandoned
initial request where he subsequently had two
different lawyers appointed and did not assert right
again after question of self-representation had been
left open for further discussion)
Bryant, supra at 737. For these reasons Appellant’s first issue fails.
In his second and third issues, Appellant challenges the PCRA court’s
determination that he failed to establish ineffective assistance of counsel
relative to counsel’s failure to raise an issue of prosecutorial misconduct
during trial and on direct appeal, and dismissing his related Brady6 claim.
Appellant’s Brief at 20, 22. Appellant essentially avers the Commonwealth
withheld M.C.D.A.’s immigration status as requested by the defense prior to
trial. Id. at 22. Appellant asserts the Commonwealth failed to turn over
M.C.D.A.’s U-Visa application, which Appellant claims evidenced a benefit to
her in exchange for her testimony, the absence of which foreclosed adequate
exploration of her bias. Id.
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6
Brady v. Maryland, 373 U.S. 83 (1963).
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Brady does not require the disclosure of information
“that is not exculpatory but might merely form the
groundwork for possible arguments or defenses,” ….
The duty to disclose is limited to information in the
possession of the government bringing the
prosecution, and the duty does extend to
exculpatory evidence in the files of police agencies of
the government bringing the prosecution. Brady is
not violated when the appellant knew or, with
reasonable diligence, could have uncovered the
evidence in question, or when the evidence was
available to the defense from other sources.
Commonwealth v. Roney, 79 A.3d 595, 608, (Pa. 2013) (citations
omitted), cert. denied, Roney v. Pennsylvania, 135 S. Ct. 56 (2014)
The record discloses that Detective Nieves signed M.C.D.A.’s U-Visa
application and sent it to the immigration attorney, however a copy of the
visa was not retained by the police or the Commonwealth. See PCRA Court
Opinion, 4/27/15, at 21. Because the form was not in the Commonwealth’s
possession, it was not obligated to provide it to Appellant. See Roney,
supra. Furthermore, the fact that M.C.D.A. received a U-visa was known to
Appellant and was addressed at trial to question her motive in testifying. As
a result, Appellant has failed to show his claim has any arguable merit. In
addition, the PCRA court provided the following explanation in the alternative
as to why Appellant did not suffer any prejudice.
Moreover, even if the Commonwealth did possess
the U-Visa application, the failure to disclose the
actual form used by MCDA was not prejudicial to
Appellant because he was aware of the substance of
the executed form. MCDA’s U-Visa status was
exhaustively covered at trial. Through extensive
testimony of both MCDA and Detective Nieves at
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trial, the jury was made aware that MCDA was not a
citizen of the United States and that Detective Nieves
had filled out a U-Visa application to allow MCDA to
avoid deportation since she was the victim of a
crime. The fact that Appellant was not in physical
possession of a form establishing MCDA’s citizenship
status had no prejudicial impact at trial because
Appellant was aware, and therefore able to cross-
examine MCDA, regarding her citizenship and any
benefits she had received in exchange for her
testimony. For these reasons, it is our belief that
Appellant cannot establish that he was prejudiced in
not receiving a copy of said application, and as such,
his Brady claim fails.
PCRA Court Opinion, 4/27/15, at 21 (footnote omitted). Accordingly, we
agree with the PCRA court that Appellant failed to establish any prejudice.
In light of the foregoing, we discern no abuse of discretion or error of
law by the PCRA court in dismissing Appellant’s PCRA petition as amended.
Accordingly, we affirm the February 5, 2015 order.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2015
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