Com. Pultro, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RITA ELIZABETH PULTRO :
:
Appellant : No. 223 EDA 2022
Appeal from the PCRA Order Entered December 28, 2021
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0007119-2013
BEFORE: PANELLA, P.J., STABILE, J., and KING, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 27, 2023
Appellant, Rita Elizabeth Pultro, appeals pro se from the December 28,
2021 order dismissing her petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. § 9541-46. Upon review, we affirm.
This Court summarized the underlying facts on direct appeal:
Appellant’s conviction arises from the killing of Jason McClay
at a Rite Aid store in the City of Chester, where McClay was a
manager. The Commonwealth alleged the following. In August
and September 2013, Tariq Mahmud was employed as loss
prevention agent at the Rite Aid store. Mahmud, Ashaniere White,
and Christopher Parks planned to rob the Rite Aid store. Mahmud
told White and Parks about how much money was kept in the
store’s safe, who was working, and about blind spots in the store’s
video surveillance system. Mahmud warned them not to try to
rob the store when McClay was working, because he was a former
marine who would fight back.
On August 19, 2013, White and Parks robbed the Rite Aid
store when McClay was not on duty. On August 26 and September
4, 2013, White and Parks again attempted to rob the store, but
employees recognized White.
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Mahmud, White, and Parks thereafter sought the assistance
of new people to rob the store, and brought David Wiggins into
their plans. Wiggins wanted another individual, Appellant, to
participate as well. The group planned a robbery for September
18, 2013, but postponed it until September 19, 2013.
On September 19, 2013, McClay worked the day shift at the
Rite Aid store and stayed for the evening shift due to the
unavailability of another manager, Serita Cottman. Mahmud
called out from work that day. At approximately 9:45 p.m., an
employee saw a white female, later identified as Appellant, and a
black male, later identified as Wiggins, enter the store. Appellant
retrieved a light bulb and took it to the counter. When the
employee told her the amount due, Appellant complained that it
was too expensive, placed the item back on the shelf, and asked
to see the manager. McClay went back to the aisle, and he and
Appellant began discussing lightbulbs. Wiggins then grabbed
McClay and told McClay to take him to the safe. Wiggins and
McClay began wrestling until Appellant shot McClay at close range
at the base of his neck and killed him. Appellant and Wiggins fled
from the store and left the scene in a vehicle driven by Parks.
Commonwealth v. Pultro, No. 1593 EDA 2015, 2017 WL 6199839,
unpublished memorandum at *1 (Pa. Super. Ct. Dec. 8, 2017).
On February 11, 2015, at the conclusion of a lengthy trial, a jury found
Appellant guilty of first-degree murder, robbery, conspiracy, and carrying a
firearm without a license.1 On May 1, 2015, the trial court sentenced Appellant
to life in prison without the possibility of parole. This Court affirmed on
December 8, 2017. The Pennsylvania Supreme Court denied allowance of
appeal on July 24, 2018, and the United States Supreme Court denied
certiorari on May 13, 2019. Appellant filed a timely pro se PCRA petition on
March 31, 2020. On November 5, 2021, appointed counsel filed a no merit
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1 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903, and 6106(a), respectively.
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letter and petition to withdraw pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). On November 8, 2021, the PCRA court entered an
order granting counsel’s petition to withdraw and notifying Appellant of the
court's intent to dismiss the petition without a hearing.2 Appellant filed a pro
se response on November 30, 2021. On December 28, 2021, the PCRA court
entered the order before us. Appellant filed a timely pro se notice of appeal
On January 22, 2022.
Appellant presents six assertions of error:
A. Did the [PCRA] court err in not granting relief for ineffective
assistance of counsel?
B. Did the trial court abuse its discretion in denying change of
venue when pretrial publicity prevented a fair and unbiased
jury?
C. Did the trial court err in denying severance which prejudiced
Appellant resulting in a guilty verdict?
D. Did the prosecutorial misconduct prejudice Appellant’s due
process rights leading to her convictions?
E. Did the trial court err in denying Appellant’s motion to suppress
evidence, and granting a search warrant with an affidavit of
probable cause that lacked substantial evidence?
F. Did [the] trial court’s abuse of discretion and judge’s public bias
violate Appellant’s constitutional rights?
Appellant’s Pro Se Brief at 4.
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2 See Pa.R.Crim.P. 907.
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Appellant first argues the PCRA court erred in dismissing her claims of
ineffective assistance of trial counsel.
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court’s hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We defer
to the PCRA court’s factual findings and credibility determinations
supported by the record. In contrast, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015), appeal denied, 123 A.3d 331 (Pa. 2015).
Counsel is presumed effective. To overcome this presumption, the
petitioner must plead and prove that (1) the underlying issue is of arguable
merit; (2) counsel had no reasonable strategic basis in support of the disputed
action or inaction, and (3) that counsel’s errors prejudiced the petitioner.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013). Failure to
prove any of these three prongs is fatal to the claim. Reyes-Rodriguez, 111
A.3d at 780. Likewise, an appealing petitioner must address all three prongs
in the appellate brief, or this Court will reject the claim. Id. Furthermore,
pursuant to § 9543(a)(3), a petitioner must show that the collateral claims
have not been previously litigated or waived. Id. “At the PCRA stage, claims
of trial court error are either previously litigated (if raised on direct appeal) or
waived (if not).” Id.
Appellant argues that trial counsel was ineffective in three respects.
First, she claims trial counsel failed to object to the admission into evidence
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of redacted statements from co-defendant David Wiggins, who did not testify
at trial. She relies on Bruton v. United States, 391 U.S. 123 (1968). The
record reveals that Appellant litigated this claim on direct appeal, where she
argued that the trial court should have severed her trial from that of Wiggins
“because [Appellant] suffered a Bruton violation based on the admission of
Wiggins’ confession. She asserts that the trial evidence made clear that she
was the individual referred to in Wiggins’ statement detailing the September
21, 2013 robbery, despite the redactions to that statement.” Pultro, 2017
WL 6199839, at *6. This Court found no merit to Appellant’s assertion that
she suffered a Bruton violation. Id. at *6-*8. Because Appellant previously
litigated her Bruton claim, she cannot raise it under the PCRA.
Next, Appellant argues that trial counsel was ineffective for failing to
impeach her codefendants who pled guilty in exchange for a reduced sentence.
Appellant has not supported this argument with citations to the record.
Pa.R.A.P. 2119(c). The failure to support an argument with record citations
results in waiver.3 Commonwealth v. Fransen, 42 A.3d 1100, 1106 n.11
(Pa. Super. 2012).
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3 In any event, the record reflects that the defense attorneys for the
codefendants on trial did cross examine the pleading codefendants about the
nature of their agreements with the Commonwealth. Appellant has not
attempted to explain where or in what respects the cross examinations were
deficient.
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Finally, Appellant claims counsel was ineffective for failing to challenge
the sufficiency of the evidence. Again, Appellant’s argument, which spans
only a few sentences, does not include pertinent citations to the record.
Further, Appellant failed to include this issue in her Pa.R.A.P. 1925(b)
statement ordered by the PCRA court. For both reasons, Appellant has waived
this argument. Pa.R.A.P. 1925(b)(4)(vii); Fransen, 42 A.3d at 1106 n.11.
In the remainder of her assertions of error, Appellant does not assert
ineffective assistance of counsel. Rather, Appellant rehashes various
arguments she raised before the trial court. Each of Appellant’s remaining
arguments is either waived or previously litigated and therefore not eligible
for collateral relief.
Appellant’s Issue B, addressing the trial court’s denial of her motion for
a change of venue, was litigated before the trial court, and the trial court
rejected it. Trial Court Opinion, 5/18/16, at 19-21. Appellant did not pursue
this issue on direct appeal, resulting in waiver for purposes of collateral
review. 42 Pa.C.S.A. § 9543(a)(3); Reyes-Rodriguez, 111 A.3d at 780.
Issue C, regarding the trial court’s denial of Appellant’s severance
motions, has been previously litigated because it was addressed on the merits
by this court on direct appeal. Pultro, 2017 WL 6199839, at *5-*8; 42
Pa.C.S.A. § 9543(a)(3); Reyes-Rodriguez, 111 A.3d at 780.
Issue D, regarding prosecutorial misconduct, is waived because it was
never raised at trial or on direct appeal. Appellant does not argue that counsel
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was ineffective for failing to raise this issue, nor does she otherwise specify
how it is cognizable under the PCRA.
Issue E, regarding Appellant’s argument that the trial court erred in
denying her pretrial motion to suppress evidence, was litigated before the trial
court and addressed on the merits by this Court on direct appeal. Pultro,
2017 WL 6199839, at *3-*5. Therefore, it is not eligible for collateral relief
because it has been previously litigated. 42 Pa.C.S.A. § 9543(a)(3); Reyes-
Rodriguez, 111 A.3d at 780.
Finally, Issue F, regarding the trial court’s alleged bias against Appellant,
was never raised before the trial court or on direct appeal. Appellant does not
argue that trial counsel was ineffective for failing to take appropriate action to
address this issue, nor does she explain how it is otherwise cognizable under
the PCRA.
In summary, each of Appellant’s arguments is either lacking in merit,
previously litigated, waived, or not cognizable under the PCRA. We therefore
affirm the PCRA court’s order.
Order affirmed.
President Judge Panella joins the memorandum.
Judge King concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2023
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