Com. v. Barnes, T. ( 2021 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TYYA M. BARNES, :
:
Appellant : No. 238 MDA 2020
Appeal from the PCRA Order Entered January 16, 2020
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002483-2013
BEFORE: KUNSELMAN, J., McLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED: JANUARY 5, 2021
Tyya M. Barnes (Appellant) appeals pro se from the January 16, 2020
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
A prior panel of this Court provided the following history.
On March 4, 2013, Iliana Luciano drove Courtney Jackson, her
boyfriend, to meet with an acquaintance in Harrisburg,
Pennsylvania. Unbeknownst to her, Jackson was meeting Layton
Potter to sell him drugs. After approximately an hour and one-
half of no contact, Luciano attempted to call Jackson
approximately fifteen times.
Potter met Jackson twice that night, the last time around 8:00
p.m. At that time, he observed Appellant and Shane Holloway
across the street. Jackson indicated to Potter that he was going
to conduct a drug transaction with Appellant and Holloway, but
he first took Potter home. Potter advised him not to make the
sale, and the two men parted.
Between 8:00 p.m. and 8:30 p.m., a bystander discovered
Jackson lying face down in the alleyway near the corner store,
*Retired Senior Judge assigned to the Superior Court.
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covered in blood, without a pulse, and foaming from the mouth.
Jackson’s hands were outstretched, as if he had been running
away. Near Jackson’s body, a cell phone rang repeatedly. He had
been shot eight times in the chest, arm, and back.
Police recovered fired shell casings from a .40 caliber and .25
caliber gun. Police officers also recovered Jackson’s cell phone;
the last call received and answered by Jackson, at 7:52 p.m.,
was from a number belonging to Appellant. Security footage
from the corner store showed Jackson meeting with Appellant
and Holloway, and walking off together.
The day after the murder, Appellant told his godsister, Timothea
Anders, that he and Holloway shot Jackson. Appellant claimed
that it was an accident, specifically, that Jackson had grabbed
Holloway and Holloway shot him. On March 9, 2013, Anders
gave a statement to the police implicating Appellant and
Holloway.
In June 2014, a jury convicted Appellant of [second degree
murder, robbery, conspiracy, and carrying a firearm without a
license]. Appellant filed a post-sentence motion, which the court
denied. Appellant timely appealed, but his appeal was dismissed
for failure to file a brief. Appellant filed a petition seeking relief
under the [PCRA], and his direct appeal rights were
reinstated nunc pro tunc.
Commonwealth v. Barnes, 178 A.3d 146 (Pa. Super. 2017) (unpublished
memorandum at 1-3) (titles and citations omitted).
Appellant timely appealed to this Court. Appellant's counsel filed an
application to withdraw and brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We rejected counsel’s initial brief as being inadequate. See
Commonwealth v. Barnes, 175 A.3d 417 (Pa. Super. 2017) (unpublished
memorandum). On July 26, 2017, counsel filed a revised Anders brief and
petition to withdraw, setting forth a single issue Appellant sought to raise on
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appeal: whether the trial court erred “by allowing a magistrate judge [to]
initial in place of a signature on Appellant’s criminal complaint[.]” Barnes,
178 A.3d 146 (unpublished memorandum at 3-4). This Court agreed with
counsel that the claim was frivolous. After finding no other issues of
arguable merit, we granted counsel’s petition and affirmed Appellant’s
judgment of sentence. Id.On September 12, 2018, Appellant pro se filed the instant PCRA
petition, his first. Counsel was appointed,1 and on November 18, 2019, filed
a Turner/Finley2 no-merit letter and accompanying request to withdraw.
Therein, PCRA counsel summarized the claims Appellant wished to raise.
In Appellant’s pro se PCRA [petition], Appellant argued four
claims: (1) both pre-trial and trial counsel were ineffective for
allowing the Court of Common Pleas to accept the initials of a
Magistrate District Judge in place of her signature on Appellant’s
criminal complaint and affidavit of probable cause; (2) trial
counsel was ineffective for failing to call a material witness, who
was also Appellant’s co-defendant; (3) trial counsel was
ineffective for advising Appellant not to testify at trial; and (4)
appellate counsel was ineffective for not arguing the above
stated ineffectiveness of trial counsel and for referring to
Appellant in his appellate brief repeatedly as a female, confusing
Appellant with another client. In Appellant’s letter to counsel
dated 12 March 2019, Appellant stated that he wished to make
an additional claim of ineffective assistance of counsel for failing
1 We note that the first two attorneys the PCRA court appointed sought, and
were granted leave, to withdraw. On January 29, 2019, the PCRA court
appointed Attorney Jonathan W. Crisp, Esquire, as counsel. When referring
to PCRA counsel in this memorandum, we are referring to Attorney Crisp.
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to object to the Commonwealth’s inability to meet their burden
of proving force in the commission of the robbery.
Turner/Finley Letter, 11/15/2019, at 3 (party designations altered;
parenthetical numbers omitted).
On December 6, 2019, the PCRA court issued notice of its intent to
dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907,
and granted counsel’s petition to withdraw. Appellant responded. On January
16, 2020, the PCRA court dismissed Appellant’s petition.
This timely-filed appeal followed.3 On appeal, Appellant challenges the
dismissal of his PCRA petition. We begin with our standard of review.
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review is
limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. Finally, we may affirm a PCRA court’s decision on any
grounds if the record supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
Because Appellant’s claims all challenge the effectiveness of counsel,
we also keep the following in mind.
3Appellant complied with Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P. 1925(a)
opinion, the PCRA court referred us to its December 6, 2019 order.
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The law presumes counsel has rendered effective assistance. In
general, to prevail on a claim of ineffective assistance of counsel,
a petitioner must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place. The petitioner must demonstrate: (1) the
underlying claim has arguable merit; (2) counsel lacked a
reasonable strategic basis for his action or inaction; and (3) but
for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been
different. The petitioner bears the burden of proving all three
prongs of the test.
Commonwealth v. Postie, 200 A.3d 1015, 1022-23 (Pa. Super. 2018) (en
banc) (citations, footnote, and quotation marks omitted). “A failure to satisfy
any prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009).
We first consider Appellant’s argument that the PCRA court erred in
dismissing his claim that trial counsel was ineffective for allowing the trial
court to accept the initials of a Magistrate District Judge in place of a
signature on the criminal complaint and affidavit of probable cause.
Appellant’s Brief at 27-30. The PCRA court dismissed this claim because this
Court found the underlying claim frivolous on direct appeal. PCRA Court
Order, 12/6/2019, at 3. As noted supra, this Court affirmed Appellant’s
judgment of sentence and granted counsel’s petition to withdraw after
finding Appellant’s claim about the initials frivolous. Because this Court
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already determined that the underlying claim was without merit, the PCRA
court did not err in dismissing this ineffective-assistance-of-counsel claim.
We next consider Appellant’s argument that the PCRA court erred in
dismissing his claim that trial counsel was ineffective for failing to call
Appellant’s co-defendant, Holloway, as a witness. Appellant’s Brief at 16.
When raising a claim of ineffectiveness for the failure to call a
potential witness, a 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.
Prejudice in this respect requires the petitioner to “show how the
uncalled witnesses’ testimony would have been beneficial under
the circumstances of the case.” Therefore, the petitioner’s
burden is to show that testimony provided by the uncalled
witnesses “would have been helpful to the defense.”
Commonwealth v. Selenski, 228 A.3d 8, 16 (Pa. Super. 2020) (citations
omitted).
In dismissing this claim, the PCRA court agreed with PCRA counsel that
Holloway could not have been compelled to take the stand in violation of his
Fifth Amendment rights. PCRA Court Order, 12/6/2019, at 4;
Turner/Finley Letter, 11/15/2019, at 6. Moreover, the PCRA court
concluded that “there was no evidence to suggest that [Holloway’s]
statement would have been helpful to the outcome of the case.” PCRA Court
Order, 12/6/2019, at 4. Specifically, the PCRA court found Holloway’s
proposed testimony showed “that [Appellant] did indeed shoot [] Jackson. It
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also established that [Appellant] was at the location of the shooting.” Id.Therefore, the PCRA court concluded Appellant failed to demonstrate
prejudice. Upon review, the PCRA court’s conclusions are supported by the
record. Accordingly, no relief is due.
We next review Appellant’s argument that the PCRA court erred in
dismissing his claim that trial counsel was ineffective for advising Appellant
to refrain from testifying at trial. Appellant’s Brief at 23-26.
The decision of whether or not to testify on one’s own behalf is
ultimately to be made by the defendant after full consultation
with counsel. In order to sustain a claim that counsel was
ineffective for “failing to call the appellant to the stand,” the
appellant must demonstrate either that counsel interfered with
his right to testify, or that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent decision to
testify on his own behalf.
Commonwealth v. Uderra, 706 A.2d 334, 340 (Pa. 1998) (citations
omitted).
[T]he appropriate standard for assessing whether a defendant
was prejudiced by trial counsel’s ineffectiveness regarding the
waiver of his right to testify is whether the result of the waiver
proceeding would have been different absent counsel’s
ineffectiveness, not whether the outcome of the trial itself would
have been more favorable had the defendant taken the stand.
Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa. Super. 2015).
Instantly, Appellant stated, in open court, that after consulting with
counsel he voluntarily decided not to testify. N.T., 6/9-12/2014, at 450-53.
Thus, on the face of the record, it does not appear that counsel interfered
with Appellant’s right to testify. However, according to Appellant, counsel
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advised him not to testify because the “district attorney would eat [him]
alive.” Appellant’s Brief at 23. Appellant argues that counsel “had no
reasonable basis for misinforming Appellant in this manner when Appellant
had no prior crimen falsi [convictions] that could be revealed to impeach him
or anything to lie about, rather, Appellant just wanted his side to be heard
by the jury.” Id. at 24 (capitalization altered).
In dismissing this claim, the PCRA court noted that Appellant
completed an on-the-record colloquy, during which he stated that it was his
decision not to testify and that he believed his decision was in his best
interest. Thus, the PCRA court “fail[ed] to see how any advice given by trial
counsel prejudiced [Appellant].” PCRA Court Order, 12/6/2019, at 5.
Upon review, even if Appellant would have decided to testify absent
counsel’s purported statement that the district attorney would eat him alive
on cross-examination, Appellant has failed to “demonstrate either that
counsel interfered with his right to testify, or that counsel gave specific
advice so unreasonable as to vitiate a knowing and intelligent decision to
testify on his own behalf.” Uderra, 706 A.2d at 340. This is not a case
where counsel misadvised Appellant. See e.g., Commonwealth v. Nieves,
746 A.2d 1102 (Pa. 2000) (finding counsel’s advice not to testify due to the
possibility of being impeached by Nieves’ criminal record unreasonable
where Nieves did not have any crimen falsi convictions). An assessment of
how Appellant might fare on cross-examination does not equate to such
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interference or unreasonable advice. Accordingly, the PCRA court did not err
in dismissing this claim.
We next review Appellant’s argument that the PCRA court erred in
dismissing his claim that appellate counsel was ineffective for (1) improperly
arguing Appellant’s direct appeal claim; (2) not raising trial counsel’s
ineffectiveness; and (3) confusing Appellant with another client and referring
to Appellant as a female. Appellant’s Brief at 12-13.
In dismissing this claim, the PCRA court noted that the pronoun
misuse was remedied when counsel filed a second Anders brief with this
Court and that this Court found Appellant’s direct appeal issue to be without
merit. PCRA Court Order, 12/6/2019, at 6.
By way of further background, this Court specifically remanded for the
filing of an advocate’s brief or compliant Anders brief after counsel
submitted a non-compliant brief, wherein it appeared that counsel had not
sufficiently reviewed the record or spoken with Appellant given the pronoun
errors. See Barnes, 175 A.3d 417 (unpublished memorandum) (concluding
first Anders brief was not compliant, remanding for advocate’s brief or
compliant Anders brief, and noting that counsel referred to Appellant as
“she” throughout the brief despite Appellant’s gender being male). Upon the
filing of a second Anders brief, this Court concluded that counsel complied
with the requirements of Anders, permitted counsel to withdraw, and found
no meritorious issues that counsel failed to raise. Insofar as Appellant argues
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that counsel should have raised his ineffective-assistance-of-trial-counsel
claims on direct appeal, we observe that “[g]enerally, claims of ineffective
assistance of counsel are to be deferred to PCRA review” absent exceptions
not applicable here. Commonwealth v. Hopkins, 228 A.3d 577, 584 (Pa.
Super. 2020) (citations and quotation marks omitted). Accordingly, the
PCRA court did not err in dismissing this claim.
Lastly, we review Appellant’s argument that the PCRA court erred in
dismissing his claim that trial counsel was ineffective for failing to object to
his robbery conviction on the basis that the evidence was insufficient to
prove force. Appellant’s Brief at 31.
In dismissing this claim, the PCRA court agreed with the reasoning of
PCRA counsel. PCRA Court Order, 12/6/2019, at 6. PCRA counsel reviewed
the instructions provided by the trial court and noted that the jury found
Appellant guilty beyond a reasonable doubt. Given that the instructions were
proper, PCRA counsel concluded that “there was no way that [trial counsel]
could have objected to this verdict or instruction. The proper legal avenue at
that point [wa]s to appeal, and [Appellant] submitted an appeal after trial.”
Turner/Finley Letter, 11/15/2019, at 7.
As discussed supra, Appellant filed a direct appeal, which was the
proper avenue to challenge the sufficiency of the evidence. Although counsel
did not raise a sufficiency claim, our review pursuant to Anders revealed no
meritorious issues that counsel failed to raise. See Barnes, 178 A.3d 146- 10 -
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(unpublished memorandum at 6). Accordingly, the PCRA court did not err in
dismissing this claim.
Based on the foregoing, we affirm the PCRA court’s order dismissing
Appellant’s PCRA petition.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/05/2021
4 Appellant also filed an application for remand based on after-discovered
evidence pertaining to Potter’s testimony. See Application for Remand,
10/8/2020. “[A]fter-discovered evidence discovered after completion of the
direct appeal process should be raised in the context of the
PCRA.” Pa.R.Crim.P. 720, Note. Instantly, Appellant’s initial PCRA petition
concluded when the PCRA court dismissed it on January 16, 2020. See
Commonwealth v. Sepulveda, 144 A.3d 1270, 1279 (Pa. 2016) (“Once
the PCRA court renders a decision on a PCRA petition, [] that matter is
concluded before the PCRA court, having been fully adjudicated by that
court, and the order generated is a final order that is appealable by the
losing party.”). However, Appellant could not file another PCRA petition with
the PCRA court while the instant PCRA appeal was pending. See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (overruled on other
grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). Thus,
we deny Appellant’s motion in this Court without prejudice for him to raise it
in a second PCRA petition before the PCRA court once the instant PCRA
appeal is resolved. Because any such petition will be patently untimely,
Appellant will need to, inter alia, plead and prove one of the timeliness
exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1).
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