Com. v. Harvey, W. ( 2020 )

J. S23041/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM HARVEY, : No. 645 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered February 13, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0014937-2010,
CP-51-CR-0014981-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM HARVEY, : No. 646 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered February 13, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0014937-2010,
CP-51-CR-0014981-2010
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: August 20, 2020
William Harvey appeals from the February 13, 2019 order entered by
the Court of Common Pleas of Philadelphia County denying appellant’s petition
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filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The PCRA court set forth the following procedural history:
On October 29, 2010, [appellant] was arrested and
charged under two bills of information with three
counts [of] aggravated assault and one count each of
conspiracy, possession of a firearm prohibited,
carrying firearms without a license and possession of
an instrument of crime.[1] On February 13, 2013, at
the conclusion of his jury trial, [appellant] was found
guilty on all charges except for one count of
aggravated assault. On April 24, 2013, [appellant]
was sentenced to a total aggregate period of
confinement of 22 to 50 years.
On September 3, 2013, [appellant’s] timely motion for
post-sentence relief was denied by operation of law.
On September 3, 2013, [appellant] timely filed a
direct appeal to the Superior Court of Pennsylvania, at
121 EDA 2014, which affirmed his judgment of
sentence on October 18, 2016.
On May 9, 2017, [appellant] filed the subject timely
pro se PCRA petition . . . at CP-51-CR-0014937-2010
only, seeking a new trial, alleging ineffectiveness of
counsel. On May 17, 2017, Brandi L. McLaughlin,
Esq., was appointed as counsel to represent
[appellant] for the purposes of his PCRA petition. On
June 8, 2017, [appellant] filed a pro se amended
PCRA petition, again at CP-51-CR-0014937-2010
only. On September 1, 2017, the [PCRA c]ourt
granted counsel’s petition to withdraw. On
September 7, 2017, Demetra Mehta, Esq., was
appointed as counsel to represent [appellant] for the
purposes of his PCRA petition. On October 16, 2018,
the Commonwealth filed a motion to dismiss
[appellant’s] PCRA petition and [appellant] filed a
counseled supplemental amended PCRA petition, at
1 18 Pa.C.S.A. §§ 2702(a), 903(a), 6105(a), 6106(a), and 907(a),
respectively.
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both CP-51-CR-0014937-2010 and CP-51-CR-
00214981-2010. On December 12, 2018, the [PCRA
c]ourt, after a hearing and careful review of the
record, issued its notice pursuant to Pa.R.Crim.P. []
907 of its intent to dismiss [appellant’s] petition within
twenty days of the date of its notice. On
December 28, 2018, [appellant] filed a pro se
response to the [PCRA c]ourt’s 907 notice at
CP-51-CR-0014937-2010 only. On January 16, 2019,
the [PCRA c]ourt, after a hearing and review of
[appellant’s] response, again issued its notice
pursuant to Pa.R.Crim.P. [] 907 of its intent to dismiss
[appellant’s] petition within twenty days of the date of
its notice. On February 13, 2019, the [PCRA c]ourt,
after a hearing and a careful review of the record,
dismissed [appellant’s] petition as being without
merit.
On March 5, 2019, [appellant] timely filed the instant
notice of appeal to the Superior Court. On March 18,
2019, [the PCRA c]ourt filed and served on [appellant]
an order pursuant to Rule 1925(b) of the Pennsylvania
Rules of Appellate Procedure, directing [appellant] to
file and serve a statement of errors complained of on
appeal, within twenty-one days of the [PCRA c]ourt’s
order. On April 8, 2019, [appellant] timely filed his
statement of errors . . . [.]
PCRA court opinion, 9/12/19 at 1-3 (footnote and extraneous capitalization
omitted). On September 12, 2019, the PCRA court filed an opinion pursuant
to Pa.R.A.P. 1925(a).
On February 18, 2020, we issued an order directing appellant to show
cause why his appeal should not be quashed pursuant to our supreme court’s
holding in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Appellant
filed a timely response, and this court discharged the rule to show case,
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referring the issue to the merits panel. This court consolidated appellant’s
appeals sua sponte on March 27, 2020.
Before we can address the merits of appellant’s appeal, we must first
determine whether appellant filed a notice of appeal in compliance with our
Rules of Appellate Procedure. In Walker, our supreme court provided a
bright-line mandate requiring that “where a single order resolves issues
arising on more than one docket, separate notices of appeal must be filed for
each case,” or the appeal will be quashed. Id. at 971, 976-977. The Walker
court applied its holding prospectively to any notices of appeal filed after
June 1, 2018. Id. at 971. In the instant case, the notices of appeal were filed
on March 5, 2019, and therefore, the Walker mandate applies. The appeal
was of a single order resolving issues arising on both docket numbers. A
review of the record demonstrates that appellant filed separate notices of
appeal at each docket number; however, both notices of appeal referenced
both docket numbers in their respective captions. A recent en banc panel of
this court held that such a practice does not invalidate appellant’s separate
notices of appeal. Commonwealth v. Johnson, A.3d , 2020 WL
3869723 at *4-5 (Pa.Super. July 9, 2020) (en banc). Accordingly, we shall
consider the merits of appellant’s appeal.
Appellant raises the following issue for our review:
Did the PCRA court incorrectly dismiss the PCRA
petition without conducting an evidentiary hearing
into trial counsel’s failure to interview and then
introduce at trial alibi witnesses[?]
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Appellant’s brief at 6.
Appeals following the denial of a PCRA petition are subject to the
following standard of review:
Our standard of review from the grant or denial of
post-conviction relief is limited to examining whether
the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.
1997). We will not disturb findings that are supported
by the record. Commonwealth v. Yager, 685 A.2d
1000, 1003 (Pa.Super. 1986) (en banc).
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal
denied, 30 A.3d 487 (Pa. 2011).
Preliminarily, we note that the PCRA court determined that it did not
have jurisdiction over the collateral challenge to appellant’s conviction at
Docket No. CP-51-CR-0014981-2010. (PCRA court opinion, 9/12/19 at 4.)
Specifically, the PCRA court stated that appellant’s pro se and amended
pro se PCRA petitions filed on May 9, 2017, and June 8, 2017, respectively,
only referenced Docket No. CP-51-CR-0014937-2010. (Id.) Appellant’s
counseled amended PCRA petition, filed on October 16, 2018, referenced both
Docket No. CP-51-CR-0014937-2010 and, for the first time, Docket
No. CP-51-CR-0014981-2010. (Id.)
The PCRA requires that any petition for collateral relief be filed within
one year of the date that the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes final at the conclusion of
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direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” Commonwealth v. Callahan, 101 A.3d 118,
122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d
214, 222 ([Pa.] 1999). “[Jurisdictional time]
limitations are mandatory and interpreted literally;
thus, a court has no authority to extend filing periods
except as the statute permits.” Id. “If the petition is
determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the
petition.” Commonwealth v. Perrin, 947 A.2d
1284, 1285 (Pa.Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012).
Our supreme court, however, has repeatedly held that when an
otherwise timely PCRA petition is supplemented, the time restrictions of the
PCRA do not apply to the amendment or supplement. Commonwealth v.
Crispell, 193 A.3d 919, 929 (Pa. 2018), citing Commonwealth v. Flanagan,
854 A.2d 489, 499 (Pa. 2004) (“holding that amended petitions are not
independently subject to the PCRA’s time bar”).
Here, we agree with the Commonwealth’s argument:
[T]his is not a case in which a party improperly sought
to evade the time bar by amending a previously filed
petition to include unrelated docket numbers involving
discrete claims. Rather, [appellant]—who had not yet
received the benefit of the representation by counsel
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to which he was entitled—inadvertently omitted a
docket number on pro se filings that involved
precisely the same claim as the one later raised by
counsel.
Commonwealth’s brief at 9 n.5 (citation omitted). Accordingly, we find that
appellant’s PCRA petition was timely filed as to both docket numbers, and we
shall proceed to review the merits of appellant’s petition.
On appeal, appellant raises an ineffective assistance of counsel claim as
it relates to his trial counsel, Berto M. Elmore, Esq.
To be entitled to relief on an ineffective assistance
claim, a PCRA petitioner must establish: (1) the
underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s action or failure
to act; and (3) he suffered prejudice as a result of
counsel’s error, with prejudice measured by whether
there is a reasonable probability that the result of the
proceeding would have been different.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.
2011) (employing ineffective assistance of counsel
test from Commonwealth v. Pierce, 527 A.2d 973,
975-976 (Pa.1987).[Footnote 5] Counsel is presumed
to have rendered effective assistance.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Additionally, counsel cannot be deemed ineffective for
failing to raise a meritless claim. Commonwealth v.
Jones, 912 A.2d 268, 278 (Pa. 2006). Finally,
because a PCRA petitioner must establish all the
Pierce prongs to be entitled to relief, we are not
required to analyze the elements of ineffective
assistance claim in any specific order; thus, if a claim
fails under any required element, we may dismiss the
claim on that basis. Ali, 10 A.3d at 291.
[Footnote 5] Pierce reiterates the
preexisting three-prong test for
ineffective assistance of counsel in
Pennsylvania and holds it to be consistent
with the two-prong performance and
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prejudice test in Strickland v.
Washington, 466 U.S. 668, [] (1984).
Pierce, 527 A.2d 976-977.
Commonwealth v. Trieber, 121 A.3d 435, 445 (Pa. 2015).
Generally, counsel’s assistance is deemed
constitutionally effective if he chose a particular
course of conduct that had some reasonable basis
designed to effectuate his client’s interests. Where
matters of strategy and tactics are concerned, a
finding that a chosen strategy lacked a reasonable
basis is not warranted unless it can be concluded that
an alternative not chosen offered a potential for
success substantially greater than the course actually
pursued.
Commonwealth v. Spotz, 84 A.3d 294, 311-312 (Pa. 2014) (citations and
quotations omitted).
Appellant’s sole issue on appeal is whether the PCRA court erred in
finding that trial counsel rendered effective assistance of counsel, despite not
calling Genay Scott (“Ms. Scott”) to testify on appellant’s behalf at trial.
(Appellant’s brief at 14.)
When evaluating whether counsel was ineffective for failing to call a
potential witness, we are bound by the following standard:
When raising a failure to call a potential witness claim,
the PCRA petitioner satisfies the performance and
prejudice requirements of the Strickland test 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;
and (4) the absence of the testimony of
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the witness was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Washington, [] 927 A.2d 586,
599 ([Pa.] 2007). To demonstrate Strickland
prejudice, the PCRA petitioner “must show how the
uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case.”
Commonwealth v. Gibson, [] 951 A.2d 1110, 1134
([Pa.] 2008); see also Commonwealth v. Chmiel,
[] 889 A.2d 501, 546 ([Pa.] 2005) (“Trial counsel’s
failure to call a particular witness does not constitute
ineffective assistance without some showing that the
absent witness’s testimony would have been
beneficial or helpful in establishing the asserted
defense.”).
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009).
As noted above, at issue here is Ms. Scott’s potential testimony. In his
amended PCRA petition, appellant indicates that Ms. Scott would have testified
as follows:
Had [Ms.] Scott been called to testify she would have
testified that she was with [appellant] at the time of
the shooting and [when] walking back from a store,
they heard the shooting, [and] ran to get the children
who were out playing. Ms. Scott would have testified
[appellant] was in her company until late [ in] the
evening and knew he was with her at the time of the
shooting because she heard the shots while he was
with her. Additionally, [Ms.] Scott would testify Berto
Elmore’s investigator never contacted her.
Appellant’s supplemental amended PCRA petition, 10/16/18 at ¶ 23.
As noted by the Commonwealth, Ms. Scott’s proffered testimony would
have contradicted the testimony that appellant’s girlfriend, Shakeema Scott
(“Shakeema”), gave at trial. (See Commonwealth’s brief at 13.) Indeed, the
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record reflects that during trial, Shakeema testified that appellant was at her
house at the time of the shooting, along with her neighbor, whom she
identified as Khadijah. (Notes of testimony, 2/13/13 at 137; see also id. at
154, 160-161.) Shakeema testified that there were no other people in her
house at that time. (Id. at 137.) Shakeema further testified that immediately
after she heard the gunshots, appellant assisted her in bringing her children,
who were playing outside, into the house. (Id. at 145.)
Based on Shakeema’s testimony during trial, appellant fails to establish
that Ms. Scott’s proffered testimony would have been beneficial under the
circumstances of the case, as it would have been contradictory to Shakeema’s
testimony. See Gibson, 951 A.2d at 1134; Johnson, 966 A.2d at 536.
Accordingly, we find that the PCRA court denial of appellant’s PCRA petition is
supported by the record, and we discern no error of law.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/20
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