Com. v. Furness, P. ( 2020 )

J-A26044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL FURNESS :
:
Appellant : No. 650 EDA 2020
Appeal from the PCRA Order Entered January 17, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009880-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: November 25, 2020
Appellant, Paul Furness, appeals from the order entered in the Court of
Common Pleas of Philadelphia County dismissing his first petition for relief
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-9546.
We affirm.
This Court previously set forth the underlying facts of Appellant’s case,
as follows:
On July 20, 2012, at approximately 10:00 a.m., Christopher
Babiarz [(“Babiarz”)] saw [Furness] attempt to enter his home,
located at 3170 Richmond Street, [Philadelphia,] through the
window. On that morning, [Babiarz] heard “some rustling and
banging at the back door” and observed a silhouette walk past the
window with “something like a screwdriver in his hands,”
attempting to pry open the windows. [Babiarz] opened up the
blinds and positively saw [Furness]. [Furness] looked at [Babiarz]
and proceeded to run away. [Babiarz] opened the door[] and saw
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A26044-20
a second person, whom he could not identify, run through the
back gate of his yard. He described the second person as “about
his height ... with dirty blond or brown hair, wearing a green shirt,”
as “5′10[″], 150 pounds, approximately [age] 25 to 30 ... wearing
jeans.” Babiarz testified that he knew [Furness] from the
neighborhood, even though they were not part of the same circle
due to age differences.
[Babiarz] called the police and Officer [Edward] Berthcsi [(“Officer
Berthcsi”)] arrived. They observed tool marks on the window,
with the bottom pane indented and the capping bent. [Babiarz]
testified that there were no damages prior to this incident. In
addition, [Babiarz] recovered a bag of tools outside of the back
door that did not belong to him, which included a screwdriver,
multi-tool, paint chisel, and a vise-grip. Officer Berthcsi testified
that on that day, he received a radio call for a burglary at 3170
Richmond Street. [Babiarz] gave him a description of both males
and positively recognized one of the males as [Furness]. Officer
Berthcsi observed pry marks on [Babiarz's] rear door and on the
side window at the rear property. He also saw tools on the porch
that included a screwdriver, vise-grip, and other tools.
The Commonwealth next called Detective [John] Ellis [(“Detective
Ellis”)], Detective [James] McCullough [(“Detective
McCullough”)], and Detective Randall Farward [(“Detective
Farward”)] to testify. Detective Ellis testified that he and
Detective McCullough went out to 3170 Richmond Street on that
day and met with [Babiarz]. He recovered one green nylon bag
containing silver colored vise-grips, a Stanley screwdriver with [a]
red and yellow plastic grip, a Hyde scraper with a black handle,
and a Great Neck ratchet driver with [a] red and black handle,
which were all placed on property receipts. Detective McCullough
testified that he arrived with Detective Ellis on that day, took
photos of the scene, and recovered tools that [Babiarz] turned
over. Detective Farward testified that [Babiarz] told him he knew
who attempted to burglarize his home and positively identified
[Furness] by photo.
The defense [ ] called Carolyn Furness [(“Carolyn”)], Cheryl
Neumann [(“Cheryl”)], and Carol Furness [(“Carol”)] as their alibi
witnesses. [Carolyn, Furness's] sister, testified that on that day,
[Furness], her friend Cheryl, and herself began setting up for their
mother's retirement party at approximately 8:30 a.m. [Cheryl]
testified that she went over to [Furness's] house at approximately
-2-
J-A26044-20
9:00 a.m. to help [Furness] and [Carolyn] prepare for the
retirement party. [Cheryl] also testified that [Furness] was there
the entire time. Lastly, [Carol, Furness's] mother, testified that
she retired on that day, as a court order process clerk for the City
of Philadelphia[,] after 26 years of employment. She came home
around 11:00 a.m. and saw [Furness] present at the party.
Commonwealth v. Furness, 153 A.3d 397, 399–400 (Pa.Super. 2016)
(quoting Trial Court Opinion, 1/11/16, at 2–4 (citations and brackets
omitted)).
On April 2, 2015, a jury found Appellant guilty of criminal trespass,
criminal attempt-burglary, and possessing an instrument of crime (“PIC”).
The trial court sentenced Appellant to twelve and one-half to twenty five years’
incarceration for attempted burglary and a concurrent term of five to ten
years’ incarceration for criminal trespass. Appellant filed a post-sentence
motion, which the trial court partially granted by resentencing Appellant to
ten to twenty years’ incarceration for attempted burglary, to run consecutively
to a sentence of two and one-half to five years for criminal trespass, with a
consecutive five years of probation for PIC.
On direct appeal, this Court reversed Appellant’s conviction for criminal
trespass as based on insufficient evidence, upheld all remaining convictions,
and remanded for resentencing. After the Supreme Court of Pennsylvania
denied Appellant’s petition for allowance of appeal, the trial court resentenced
Appellant to ten to twenty years’ incarceration for attempted burglary,
followed by five years’ probation for PIC.
On January 23, 2019, Appellant filed a pro se PCRA petition. The court
appointed PCRA counsel, who filed an amended petition on April 2, 2019,
-3-
J-A26044-20
claiming that trial counsel ineffectively failed to file and litigate pre-trial
motions to suppress, to request an appropriate alibi instruction, and to object
to jury instructions. On December 16, 2019, the PCRA court deemed
Appellant’s claims meritless and, therefore, determined an evidentiary hearing
was unwarranted. Accordingly, the court issued notice under Pa.R.Crim.P.
907 of its intention to dismiss Appellant’s petition without a hearing. On
January 17, 2020, the PCRA court dismissed Appellant’s petition.
On February 14, 2020, Appellant filed both a notice of appeal and a
voluntary Pa.R.A.P. 1925(b) statement. The PCRA court thus found it
unnecessary to file an order directing Appellant to file a concise statement of
matters complained of on appeal, pursuant to Rule 1925. In Appellant’s
statement, he raised the following reasons for appeal (verbatim):
1. Appellant was denied his Constitutional right to effective
assistance of counsel as guaranteed by the Sixth Amendment
of the United States Constitution and the analogous provisions
of the Pennsylvania Constitution.
2. Appellant’s constitutional right to due process was violated by
a conviction based on evidence which did not prove his guilt
beyond a reasonable doubt.
Appellant’s Pa.R.A.P. 1925(b) statement, 2/14/20.
It is well-settled that an appellant’s Rule 1925(b) statement must
identify for the trial court the rulings that he intends to challenge “with
sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii). Therefore, if a concise statement is too vague, the court may
find all issues are waived on appeal. See Commonwealth v. Hansley, 24
-4-
J-A26044-20
A.3d 410, 415 (Pa. Super. 2011) (noting that a trial court should not have to
guess which issues are being raised and that a Rule 1925(b) statement “which
is too vague to allow the court to identify the issues raised on appeal is the
functional equivalent of no [c]oncise [s]tatement at all.” (citation and
quotation marks omitted)). This principle applies where an appellant files a
voluntary Rule 1925(b) statement. See Commonwealth v. Snyder, 870
A.2d 336 (Pa.Super. 2005) (holding appellant waived issues not presented in
voluntary Rule 1925(b) statement; it is of no moment that appellant was not
ordered to file concise statement).
Given Appellant’s failure to specify in his concise statement which of the
three distinct ineffective assistance of counsel claims raised before the PCRA
court was the subject of his appeal, the PCRA court determined it was placed
in the untenable position of having to guess at the ineffectiveness issue
Appellant would raise and develop in his forthcoming brief:
Appellant’s 1925(b) statement merely states, “Appellant was
denied his Constitutional right to effective assistance of counsel
as guaranteed by the Sixth Amendment of the United States
Constitutions and the analogous provisions of the Pennsylvania
Constitution.” Appellant’s statement does not specifically identify
any alleged legal error committed by this court nor does it identify
which specific claim(s) (relating to trial counsel’s alleged
ineffectiveness) he seeks to pursue on appeal. Like the petitioner
in [Commonwealth v. Parrish, ___ A.3d ____, 2020 WL
355016, at *14 (Pa. January 22, 2020)], Appellant’s 1925(b)
statement is sweepingly broad and generically encompasses
“every conceivable claim of ineffective assistance of trial counsel”
contained within his PCRA petition. See id., at *15.
…
-5-
J-A26044-20
In Parrish, a PCRA attorney filed four amended PCRA petitions
alleging, inter alia, that trial counsel was ineffective for failing to
file pretrial motions and failing to retain a mental health expert.
Id., at *14. The PCRA court denied relief on all claims and issued
a forty-five page opinion dismissing the petition. Id. at *5.
Parrish appealed, and PCRA counsel filed a 1925(b) statement
alleging the following errors:
1. The PCRA court erred and abused its discretion by
not finding that trial counsel were ineffective in
their representation of [Parrish] to the extent that
he is legally entitled to a new trial.
2. The PCRA court erred and abused its discretion by
not finding that the case for mitigation of [Parrish]
was compiled and presented in a legally ineffective
manner, entirely outside of the standards of the
profession, such that [Parrish] is entitled to a new
penalty-phase of his trial.
3. The PCRA court erred and abused it discretion by
not finding that the failure of trial counsel to
effectively represent [Parrish] and represent his
interests resulted in complete and total breakdown
of his ability to receive meaningful appellate review
of his conviction, trial, and the underlying
proceedings of the same.
Id. Ultimately, the Supreme Court of Pennsylvania held that
Parrish’s 1925(b) statement was “so wholly lacking in
comportment with Rule 1925(b)’s basic requirements that a
finding of waiver [was] clearly warranted.” Id. at *14. The court
further held that waiver was mandated by Pa.R.A.P.
1925(b)(4)(vii), as the 1925(b) statement
[d]id not identify any specific legal error committed by
the PCRA court in its rulings on the multifarious
claims of trial counsel ineffectiveness presented
in the amended PCRA petitions, nor did it even identify
which of those rulings were being challenged on
appeal. Rather, it generically and capaciously
encompassed every conceivable claim of
ineffective assistance of trial counsel contained
-6-
J-A26044-20
in the amended PCRA petitions. As such, it forced
the PCRA court to guess which of its rulings were
being challenged.
Id. at *15 (emphasis added).
PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 6/15/20, at 5-6.
As Appellant was appealing from a PCRA court order that denied three
discrete ineffective assistance claims raised in his amended petition, his
concise statement served as his opportunity to place the PCRA court on notice
regarding which specific ineffectiveness claim or claims he intended to
advance. Having failed to identify a claim, Appellant impeded the court’s
ability to author a responsive opinion that would enable our meaningful
appellate review. Accordingly, we discern no error with the PCRA court’s
reliance on Parrish to find Rule 1925 waiver applies to the vague ineffective
assistance of counsel claim raised in Appellant’s concise statement.
Whether the remaining claim in Appellant’s Rule 1925(b) statement,
“Appellant’s constitutional right to due process was violated by a conviction
based on evidence which did not prove his guilt beyond a reasonable doubt[,]”
challenges the weight or the sufficiency of the evidence is unclear from its
wording. The distinction makes no difference with regard to the viability of
this claim, however, as it would fail as either previously litigated or waived
under the PCRA. See 42 Pa.C.S.A. § 9543(a)(3) (providing that a petitioner
must plead and prove by a preponderance of the evidence that his allegation
of error has not been previously litigated or waived).
-7-
J-A26044-20
Specifically, on direct appeal, this Court rejected Appellant’s weight of
the evidence challenges raised against each of his convictions, which would
bar him from re-litigating the claim presently on collateral appeal. See 42
Pa.C.S.A. § 9544(a)(2). Alternatively, if this claim implicates the sufficiency
of the evidence, it would be waived, as Appellant had the opportunity to raise
a sufficiency challenge on direct appeal. See 42 Pa.C.S.A. § 9544(b). Finally,
to the extent Appellant has briefed additional issues not included in his
Pa.R.A.P. 1925(b) statement, they, too, are waived for the reasons expressed
supra.1
____________________________________________
1 It bears further observation that Appellant’s second matter raised in his
concise statement relates to no specific issue he subsequently raised in his
brief. Specifically, his “Statement of the Questions Involved” identifies four
issues, none of which is raised in his Pa.R.A.P. 1925 statement:
1. Whether the PCRA court erred by dismissing the PCRA petition
when evidence was presented that trial counsel was ineffective
for filing to file and litigate pre-trial motions to suppress
identification and physical evidence.
2. Whether the PCRA court erred by dismissing the PCRA petition
when evidence was presented that trial counsel was ineffective
for failing to request an appropriate jury instruction regarding
alibi witness testimony, and failing to object to the jury
instruction regarding alibi witness testimony actually given by
the court.
3. Whether the PCRA court erred by dismissing the PCRA petition
when evidence was presented that Appellant’s constitutional
rights were violated by prosecutorial misconduct, based on the
prosecutor’s improperly defining reasonable doubt to the jury.
-8-
J-A26044-20
For the foregoing reasons, we affirm the PCRA court’s order denying
Appellant relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/20
____________________________________________
4. Whether the PCRA court erred by failing to grant an evidentiary
hearing.
Appellant’s Brief, at 8.
-9-