Com. v. Plummer, W. ( 2020 )

J-S61004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PLUMMER :
:
Appellant : No. 2042 EDA 2018
Appeal from the PCRA Order Entered June 19, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003689-2014,
CP-51-CR-0003690-2014, CP-51-CR-0015155-2013
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: April 1, 2020
William Plummer appeals pro se from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”) in three
underlying cases.1 We vacate and remand for further proceedings.
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1 Appellant filed one notice of appeal listing all three docket numbers in
violation of our Supreme Court’s decision in Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) (mandating separate notices of appeal at each docket
implicated by the appealed-from order). However, the PCRA court repeatedly
advised Appellant that he could appeal its ruling by filing a single notice of
appeal. See N.T. 6/19/18, at 150, 153 (referencing “an appeal” and “the
appeal” in discussing Appellant’s appeal rights) (emphases added). We have
held that “such misstatements as to the manner that [the a]ppellant could
effectuate an appeal . . . amount to a breakdown in court operations such that
we may overlook the defective nature of [the] timely notice of appeal rather
than quash pursuant to Walker.” Commonwealth v. Stansbury, 219 A.3d
157, 160 (Pa.Super. 2019). Therefore, we shall address Appellant’s claims
rather than quash this appeal.
* Former Justice specially assigned to the Superior Court.
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The trial court offered the following summary of the facts underlying
Appellant’s convictions for his direct appeal:
On September 29, 2013, at around 1:00 a.m., Ronald Elliot
left his girlfriend, Kandis Fowler’s, home at 3601 Conshohocken
Avenue and went to the apartment building’s parking lot.
[Appellant] and two other men, holding fake police badges,
jumped out of the bushes and yelled “Freeze, Police.” Elliot ran
out of the parking lot and across the street as the three men
chased him. [Appellant] stopped pursuing Elliot and acted as a
lookout standing on the sidewalk on the parking lot side of the
street while the other two men caught Elliot across the street.
After the two men hit Elliot four or five times in the head with a
firearm, cutting him on the head, the two men took Elliot’s watch,
money and car keys. The men joined back up with [Appellant]
and all three men ran to the parking lot. Elliot saw [Appellant]
drive off in Fowler’s Ford Expedition.
On February 5, 2014, after [Appellant] had been arrested
and charged with [the] robbery of Elliot, Elliot received multiple
phone calls from [Appellant]. [Appellant] threatened Elliot,
explaining that if Elliot attended the next court date [Appellant]
was going to firebomb the homes of Elliot’s mother, girlfriend, and
grandparent and kill Elliot. . . .
On February 9[,] 2014, Valerie and Russell Fowler, Kandis
Fowler’s parents, were living in a row home on Washington Lane.
At about 4:00 a.m., Valerie Fowler heard a “bang” and smelled
smoke. Russell Fowler went downstairs and saw a small fire in
the back yard. After the fire was extinguished, Russell Fowler
noted that the first floor back window was broken and saw a bottle
with a wick in it in the back yard.
Detective Timothy Brooks of the Philadelphia Police’s Bomb
Disposal Unit and an expert in arson explosives arrived at the
Fowler’s home on Washington Lane shortly after the fire was
extinguished. Outside the back of the house, Detective Brooks
observed two bottles with wicks in them, one intact and the other
shattered, which he believed to be Molotov cocktails. Detective
Brooks observed strike marks on the back window and a broken
bottle at the bottom of the basement steps that indicated that a
Molotov cocktail had struck the house and fallen to the ground.
The intact bottle contained liquid and a cloth wick, which smelled
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of gasoline. Detective Brooks recovered the bottles, wicks, and
liquid.
On February 9, 2014, Detective Kevin Sloan requested that
Philadelphia prison authorities search [Appellant’s cell]. The
prison authorities recovered a cell phone in [Appellant’s] cell.
According to Cricket Communications’ records, the cell phone
recovered from [Appellant’s] cell had been used to call Elliot four
times on February 5, 2014.
[Appellant] testified on his own behalf. [He] asserted that
in the first week of September 2013, Elliot gave [Appellant]
$15,000 to purchase drugs for him. [Appellant] kept the money
but did not purchase the drugs. [Appellant] asserted that on
September 29, 2013, he was not on Conshohocken Avenue but
instead was in Norristown. [Appellant] explained that he was
unable to run because he was shot many years before.
[Appellant] admitted that he had called Elliot but claimed the call
was to arrange to return Elliot’s money in exchange for Elliot not
appearing at trial.
Trial Court Opinion, 6/4/15, at 2-4 (citations and footnotes omitted).
Appellant was charged with numerous crimes at the above-captioned
docket numbers. Ultimately, a jury convicted him of one or more counts each
of conspiracy, aggravated assault, robbery, robbery of a motor vehicle, arson,
risking a catastrophe, intimidation of a victim, retaliation against a victim, and
contraband (non-controlled substance). Appellant received an aggregate
sentence of thirty to sixty years of incarceration. On direct appeal, this Court
affirmed, and our Supreme Court denied Appellant’s petition for allowance of
appeal. See Commonwealth v. Plummer, 153 A.3d 1110 (Pa.Super. 2016)
(unpublished memorandum), appeal denied, 159 A.3d 938 (Pa. 2016).
Appellant filed a timely pro se PCRA petition, and counsel was appointed.
Counsel filed an amended petition, including only four of the many claims that
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Appellant raised in his pro se filings. Displeased by the omissions, Appellant
applied for the appointment of new counsel. Appellant also filed a letter in
which he contended that PCRA counsel had a duty to pursue each and every
claim that Appellant wished to raise, or to file “a hybrid Turner/Finley letter”2
explaining why there was no merit in the claims he chose not to include in the
amended petition. Case Correspondence, 5/4/18, at 1. Citing Appellant’s lack
of faith in his representation, counsel sought to withdraw and have the PCRA
court appoint new counsel or hold a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver of the right to counsel
is sought at the post-conviction and appellate stages, an on-the-record
determination should be made that the waiver is a knowing, intelligent, and
voluntary one.”). For reasons not apparent from the certified record, the PCRA
court denied the request without conducting a Grazier hearing. See Order,
5/8/18.
Appellant next filed a motion to proceed pro se, which the PCRA court
addressed at the outset of the hearing it had scheduled on the claims raised
in counsel’s amended petition. Appellant informed the court that he did not
want to represent himself, but rather he desired to have counsel pursue all of
the claims that he wished to raise. N.T. PCRA Hearing, 6/11/18, at 10. The
____________________________________________
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (explaining procedure
for PCRA counsel to withdraw from the representation where no meritorious
issues exist); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc) (same).
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PCRA court deferred addressing that issue, instead having PCRA counsel
conduct the questioning of witnesses in connection with the issues raised in
the counseled petition. Id. at 10-11. At the end of the hearing, the PCRA
court scheduled another date for Appellant to present additional witnesses.
In between hearings, Appellant filed another motion to proceed pro se,
citing “irreconcilable differences and the lack of communication on strategy.”
Motion, 6/14/18, at 1. At the second PCRA hearing, the PCRA court did not
conduct a Grazier hearing or otherwise address Appellant’s renewed request
for self-representation. Instead, counsel continued to represent Appellant at
the second hearing, presenting and cross-examining witnesses. Following the
close of evidence and the arguments of counsel, the PCRA court invited
Appellant to state “what it is that you want preserved for the record[.]” N.T.
PCRA Hearing, 6/19/18, at 143. Appellant indicated, inter alia, that he wanted
the pro se PCRA claims that counsel omitted from the amended petition to be
“exhausted.” Id. at 143-44. At that point, the PCRA court conducted a
colloquy to determine whether Appellant wished to make a knowing and
voluntary waiver of his right to counsel. See N.T. PCRA Hearing, 6/19/18, at
145-51 (quoted in relevant part infra). The PCRA court concluded that
Appellant desired to proceed pro se on appeal, and ultimately entered an order
allowing counsel to withdraw. See Order, 7/13/18.
Appellant filed a timely pro se notice of appeal. The PCRA court did not
order him to file a Pa.R.A.P. 1925(b) statement of errors on appeal, and none
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was filed. The PCRA court nonetheless authored an opinion pursuant to
Pa.R.A.P. 1925(a), in which it explained the reasons behind its conclusion that
the claims raised in counsel’s amended petition merited no relief.
On appeal, Appellant presents many and varied claims of the ineffective
assistance of trial, direct appeal, and PCRA counsel, including both allegations
that were litigated in the PCRA court, and pro se contentions that were
abandoned by counsel in the amended petition. See Appellant’s brief at 4-8.
Additionally, Appellant argues that the PCRA court erred by accepting PCRA
counsel’s determination as to the lack of merit in the pro se claims without
requiring a Turner/Finley letter and conducting an independent review, and
by failing to allow him to create a proper record as to the merits of the
abandoned pro se claims by, e.g., opting not to order a Pa.R.A.P. 1925(b)
statement. Id. at 18. The relief Appellant seeks from this Court is a new trial
based upon the constitutionally-deficient performance of counsel, or, in the
alternative, remand to the PCRA court for the proper resolution of his
unlitigated claims. Id. at 11.
We begin with our standard of review. “The standard of review of an
order dismissing a PCRA petition is whether that determination is supported
by the evidence of record and is free of legal error.” Commonwealth v.
Williams, 220 A.3d 1086, 1090 (Pa.Super. 2019). “It is an appellant’s burden
to persuade us that the PCRA court erred and that relief is due.”
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Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(internal quotation marks and citation omitted).
As we find the issue dispositive, we begin with Appellant’s claim that the
PCRA court erred in its manner of handling Appellant’s requests to pursue all
of the claims raised in his pro se PCRA petition and supplement thereto.3 The
following legal principles inform our decision.
On a first PCRA petition, a petitioner is entitled to the assistance of
counsel to guarantee that he has “at least one meaningful opportunity to have
[his] issues reviewed.” Commonwealth v. Karanicolas, 836 A.2d 940, 945
(Pa.Super. 2003) (citations and internal quotation marks omitted).
This Court has admonished, accordingly, that the point in time at
which a trial court may determine that a PCRA petitioner’s claims
are frivolous or meritless is after the petitioner has been afforded
a full and fair opportunity to present those claims. Our [S]upreme
[C]ourt has recognized that such an opportunity is best assured
where the petitioner is provided representation by competent
counsel whose ability to frame the issues in a legally meaningful
fashion insures the [PCRA] court that all relevant considerations
will be brought to its attention.
Commonwealth v. Hampton, 718 A.2d 1250, 1252 (Pa.Super. 1998)
(internal quotation marks and citations omitted). “When appointed, counsel’s
duty is to either (1) amend the petitioner’s pro se [p]etition and present the
petitioner’s claims in acceptable legal terms, or (2) certify that the claims lack
____________________________________________
3The issue is dispositive because, as the Commonwealth correctly notes, the
vast majority of the issues Appellant seeks to raise in this appeal were not
preserved for our review. See Commonwealth’s brief at 9-10.
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merit by complying with the mandates of Turner/Finley.” Commonwealth
v. Cherry, 155 A.3d 1080, 1083 (Pa.Super. 2017).
If there are any issues of arguable merit, counsel must file an amended
petition, exercising professional judgment to determine which claims to raise
therein. This Court has held, in the context of a direct appeal, that a defendant
may not compel counsel to pursue even “nonfrivolous points requested by the
client, if counsel, as a matter of professional judgment, decides not to present
those points.” Commonwealth v. Morrison, 173 A.3d 286, 292-93
(Pa.Super. 2017). Further, contrary to Appellant’s argument, counsel may
not, in the face of a client’s insistence upon pursing claims counsel deems
unworthy of pursuit, employ a hybrid approach of advancing some claims, but
arguing against the merits of others. Id. Rather, “when counsel and an
appellant disagree on which issues should be raised and/or briefed on appeal,
counsel must only raise and/or brief the issues that counsel believes,
consistent with counsel’s ethical duty, to be nonfrivolous.” Id.
Upon such disagreement between attorney and client, the client “is free
to petition for the withdrawal of counsel in order for the [client] to attempt to
proceed pro se or with privately-retained counsel.” Id. Indeed, a “criminal
defendant has a constitutional right to represent himself” and it is error for a
court to ignore “a timely and unequivocal request” of a PCRA petitioner to
proceed pro se. Commonwealth v. Robinson, 970 A.2d 455, 457
(Pa.Super. 2009). A court faced with a PCRA petitioner’s request to proceed
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pro se must make an on-the-record determination that the waiver of the right
to PCRA counsel is made knowingly, intelligently, and voluntarily. See
Grazier, supra at 82.
We now examine the facts of the instant case as revealed by the certified
record. After PCRA counsel filed the amended petition abandoning most of
Appellant’s pro se claims, but before the Commonwealth filed its response to
the amended petition, Appellant filed a thirteen-page letter disagreeing point-
by-point with counsel’s explanations for his professional assessment of the
claims. See Case Correspondence, 4/24/18, at 1-13. Appellant promptly
followed up with an application for new counsel, contending that PCRA
counsel’s amended petition was “defective” because he only included a
handful of his claims. See Application for Relief for Appointment of New
Counsel and Objections to PCRA Counsel’s Defective Amended PCRA Petition,
4/27/18, at 3.
Shortly thereafter, PCRA counsel filed a motion to withdraw. Therein,
counsel noted Appellant’s recent filings in which he expressed his
dissatisfaction with counsel, indicated that he had ceased work on Appellant’s
case, and requested that the court either appoint new counsel or hold a
Grazier hearing to ascertain whether Appellant wished to proceed pro se.
See Motion to Withdraw as Counsel, 5/3/18, at 3-4. On May 8, the PCRA
court entered an order denying without explanation counsel’s motion to
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withdraw. Order 5/8/18. The PCRA court did not address or reference
Appellant’s pro se requests for counsel and to represent himself.
On May 22, 2018, again citing his disagreements with counsel, Appellant
filed a motion to proceed pro se wherein he requested a Grazier hearing. See
Application for Relief Seeking Pro Se Status, 5/22/18, at 2-3. At the June 11,
2018 PCRA hearing, the court acknowledged Appellant’s pending motion, and
asked him on the record whether he wanted to represent himself. Appellant
responded “Well, you know . . . .” N.T. PCRA Hearing 6/11/18, at 7. The
PCRA court cut him off, asked for a yes or no answer. Id. Appellant replied
“No, not at all.” Id. The court then conducted the hearing with counsel
representing Appellant, scheduling a second date at its conclusion for
Appellant to present additional witnesses.
Before the second hearing, Appellant filed another motion to proceed
pro se, citing “irreconcilable differences and the lack of communication on
strategy.” Motion, 6/14/18, at 1. At the June 19, 2018 hearing, the PCRA
court did not conduct a Grazier hearing or otherwise address Appellant’s
renewed request for self-representation. Rather, after the presentation of
witnesses and arguments of counsel, the PCRA court invited Appellant to state
“what it is that you want preserved for the record[.]” N.T. PCRA Hearing,
6/19/18, at 143. Appellant indicated, inter alia, “claims that I filed in my initial
PCRA and my supplemental PCRA claim, I, J, L, N, O, R, T, U and Y I want
raised. I don’t know why my lawyer isn’t raising them. He is saying he
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believes there is no legal basis. I want these claims exhausted.” Id. at 143-
44. The following exchange ensued:
THE COURT: . . . Counsel was appointed to represent you.
The representation of Counsel for a PCRA is slightly different than
when Counsel is appointed for trial.
It is his responsibility to review your initial petition and it is
his responsibility to litigate the issues that he believes have merit.
Now, he’s filed the supplemental petition and we’ve had a
hearing on the issues that he believes, in his professional opinion,
have no merit. You have your statement on the record.
If you want to continue, I mean, we already -- well, let me
backtrack.
We already went through, earlier last time that I saw you,
whether or not you wished to represent yourself. So, this is the
last chance before I send you back if you have a disagreement
with your Counsel, you are certainly entitled to represent yourself
and you would then be responsible for any subsequent motion.
For instance, if I deny this petition then, if you want to
represent yourself on appeal, you are welcome to do so. But I
just have to ask you, as I told you before, I would have to ask
certain questions to make sure that you understand the
ramifications of representing yourself.
So, when I last saw you on the 11th, you had indicated that
you wished to have Counsel handle this hearing. The hearing is
now over so I’m going to ask you the same question, do you want
Counsel to continue to represent you or do you wish to represent
yourself? You are always free to hire someone.
THE DEFENDANT: Well, if I have him represent me, right,
and he don’t raise these claims, would these claims be waived if I
go to Federal Relief Court?
THE COURT: Well, I’m not an expert on Federal Relief.
Legally, they are waived for the State.
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So, I cannot give you advice for the Federal system. I can
only tell you that what has been preserved right now is what we
had the hearing on. That’s an argument that you can make in
Federal Court. You would have the transcript here available to
you.
THE DEFENDANT: Well, I have to represent myself.
THE COURT: You don’t have to represent yourself. You are
choosing to represent yourself?
THE DEFENDANT: Yes. Yes.
....
THE COURT: Do you understand that if I dismiss this
petition, the next step is to file an appeal with Superior Court?
THE DEFENDANT: Yes.
THE COURT: Do you understand that if you would have to
--
THE DEFENDANT: Hold on. If you dismiss what?
THE COURT: Your petition.
THE DEFENDANT: Dismiss mine or [counsel’s]?
THE COURT: I would be dismissing everything.
THE DEFENDANT: We have to do all of this over again?
THE COURT: No. I’m dismissing it. I can tell you right now
I’m dismissing it. I will give your rights.
....
THE DEFENDANT: Can I ask you one more question? You
said something would be dismissed. What would be dismissed?
THE COURT: I am dismissing your entire petition.
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THE DEFENDANT: My whole PCRA. So, I have to come at
you with another one?
THE COURT: No. You would have to file -- that’s what I
wanted to make sure that you understand.
You have to file an appeal to Superior Court, would be your
next step, within 30 days.
Now, I will be giving you those rights no matter what. The
only difference is, whether or not Counsel would be doing it for
you or if he doesn’t do it, whether I have -- I mean Counsel would
be, because he filed an amended petition, under the rules he
would have to file the appeal for you.
But if you want to represent yourself, I will permit him to
withdraw and then you will be responsible for filing the appeal.
And I want to make sure that you understand that now, so that
you can make the necessary steps to file the appeal, to get the
notes of testimony, and to prepare yourself for the appeal.
So, it is your decision. Either Counsel continues or you
represent yourself. Or again, as I told you, you are always free
to hire another attorney.
So, you’ve told me that you wish to represent yourself.
THE DEFENDANT: Now, listen, see, my thing is I don’t want
nothing waived. I want to exhaust everything.
THE COURT: I understand that.
So, you now have a choice. You’ve told me you want to
represent yourself.
THE DEFENDANT: I don’t understand. I don’t understand.
Why would that --
THE COURT: Sir, I’ve already told you, I am dismissing your
petition. I find it without merit.
So, do you wish --
THE DEFENDANT: Well --
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THE COURT: No. It is my turn to talk.
Do you wish to represent yourself on appeal or do you want
Counsel to continue?
THE DEFENDANT: If I represent myself, you dismissing this
petition, his petition?
THE COURT: I’m dismissing it no matter who represents
you. I find it has no merit.
THE DEFENDANT: Okay. Well, I would like to represent
myself.
N.T. PCRA Hearing, 6/19/18, at 145-51.
Comparing the above-referenced case law with the transcript from the
June 19, 2018 hearing, it is clear that the PCRA court properly informed
Appellant about his rights and counsel’s obligations. Counsel had no obligation
to raise claims that he, in his professional judgment, deemed unworthy of
pursuit. See Morrison, supra at 292-93. Nor, given his decision to pursue
a number of issues he determined to have potential merit, was it proper for
him to file a partial Turner/Finley letter as to the claims he chose to forgo.
See Morrison, supra at 292-93. Further, the PCRA court properly made an
inquiry, in accordance with Grazier, as to Appellant’s desire to proceed pro
se and the rights and responsibilities attendant with self-representation.
However, we are constrained to conclude that the PCRA court waited
too long to address Appellant’s repeated requests to represent himself. The
on-the-record colloquy conducted by the PCRA court at the conclusion of the
hearing leaves no doubt that, while Appellant preferred to have the assistance
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of counsel, he would rather represent himself if he could not compel counsel
to litigate all of the claims he wished to raise. Appellant’s priority was to
“exhaust” all of the claims raised in his pro se petition and supplement, and
he would choose whatever course of action was necessary to avoid waiving
any of them.
Had the PCRA court conducted the full Grazier colloquy when Appellant
and counsel first brought their disagreements to the court’s attention,
Appellant would have been able to litigate any and all of his issues and
preserve them for this Court’s review. By waiting to conduct the colloquy until
the hearing was concluded and only the issues raised in counsel’s amended
petition had been preserved, the PCRA court placed Appellant in a position to
achieve none of his goals upon electing to proceed pro se.
Further, as Appellant contends that PCRA counsel failed to properly
litigate the claims that he did pursue at the PCRA hearings, we decline to rule
on the merits of those claims in this appeal. On remand, Appellant may
attempt to present the PCRA court with the additional evidence that he claims
PCRA counsel neglected to offer. See, e.g., Appellant’s brief at 6 (contending
that PCRA counsel failed to investigate and subpoena an identified alibi
witness).
Accordingly, we conclude that the PCRA court erred in failing to conduct
a full Grazier hearing when it was first presented with the issue of Appellant’s
desire to exercise his right to have his day in court as to all of his PCRA claims.
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We therefore vacate the order dismissing his petition, and remand for
Appellant to file, pro se,4 an amended petition raising each claim he wishes
the PCRA court to resolve, including those that may have been litigated prior
to this appeal. It is for the PCRA court to determine the appropriate procedure
for resolving any claims in the amended petition that it had not previously
addressed, and whether an additional hearing is necessary. Should Appellant
find himself aggrieved after the PCRA court issues a final order resolving
Appellant’s additional claims, Appellant will be free to appeal from that order
and challenge the PCRA court’s rulings both prior and subsequent to the
instant appeal.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/20
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4 As discussed supra, PCRA counsel was under no obligation to pursue all of
Appellant’s pro se claims in addition to the claims counsel deemed worthy of
pursuit. See Commonwealth v. Morrison, 173 A.3d 286, 292-93
(Pa.Super. 2017). Thus, Appellant is not entitled to the appointment of new
counsel on remand, but may either retain private counsel or proceed pro se.
Id.
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