Com. v. Miller, S. ( 2023 )

J-S10027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN MILLER :
:
Appellant : No. 1316 EDA 2022
Appeal from the PCRA Order Entered May 10, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011715-2014
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 23, 2023
Steven Miller appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we
affirm.
This Court previously set forth the following factual and procedural
history of this case as follows:
On October 6, 2013, [Miller], an inmate at Curran-Fromhold
Correctional Facility in Philadelphia, was using a phone in
the prison’s telephone bank.[1] Khayree Murray, a fellow
inmate, approached [Miller] and asked to use one of the
phones. Correctional Officers Denise Irving and Eddie Rosa
and Correctional Sergeant Joyce Cooper observed [Miller]
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1 Miller was in prison on pre-trial incarceration due to an unrelated case in
which Miller was charged with third-degree murder. See Commonwealth v.
Miller, 131 A.3d 83 (Pa. Super. 2015) (Table). Relevantly, in that case, Miller
was later convicted of third-degree murder, prior to sentencing in the instant
case. Id.J-S10027-23
attack Murray. [Miller] stabbed Murray several times with
“a sharp long screw rigged with sharp ridges and a rubber
band wrapped in a ripped T-shirt” in the head, back, and
ear. Officer Rosa immediately intervened, separated the
two men with the help of Officer Irving, and used pepper
spray to subdue [Miller]. Officers recovered the makeshift
weapon from the ground after [Miller] dropped it. Officer
Rosa testified that Murray was in shock and that he did not
observe Murray strike [Miller prior to Miller attacking
Murray].
Murray attempted to downplay his injuries, and told officers
that he fell down some stairs. Murray sustained life-
threatening injuries, which included three stab wounds to
the back, two puncture wounds to the base of the neck,
wounds to his back, back of the head, and left hand, and
lacerations to this ear and cheek. Murray’s injuries required
eight sutures. Sergeant Cooper decided to transport Murray
to the hospital for treatment. [Miller] had no injuries, but
he was treated for pepper spray in his eyes and placed in
solitary confinement.
While walking with Officer Rosa through the prison shortly
after the stabbing, [Miller] stated, “If you didn’t pepper
spray, you would have been the next victim.” In recorded
prison phone calls, [Miller] subsequently made several
inculpatory statements boast[ing] of his violent reputation
in the prison as a result of the attack, and repeated a rumor
that there was a bounty on Murray’s head because he was
such a snitch.
[Miller] proceeded to a jury trial. Murray refused to testify
at trial and the trial court held him in contempt. [Miller]
testified and claimed that he acted in self-defense. Although
[Miller] claimed that Murray attacked him first with the
weapon, [Miller] admitted that he never feared that Murray
would kill him.
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On June 25, 2015, the jury convicted [Miller] of
[a]ggravated [a]ssault,[2] [s]imple [a]ssault,[3] and
possessing an instrument of crime.[4] On that same day,
the trial court imposed an aggregate term of 8 to 20 years’
incarceration. [Miller] filed a [p]ost-[s]entence [m]otion,
which the trial court denied on October 2, 2015.
Commonwealth v. Miller, 172 A.3d 632, 638 (Pa. Super. 2017).
[Miller filed a timely direct appeal to this Court, raising eight
claims.] We deemed the first seven issues meritless and affirmed
[the] judgment of sentence on that basis, but we determined
[that] remand was necessary to allow the trial court to consider
the final issue, in which [Miller] raised an after-discovered
evidence claim. Id. at 650-51.
* * *
On May 23, 2018, the trial court conducted an evidentiary hearing
pursuant to [our remand]. By its [o]rder of May 30, 2018, the
[trial] court denied [Miller’s after-discovered evidence claim] due
to lack of merit.
Commonwealth v. Miller, 224 A.3d 787 (Pa. Super. 2019) (Table) (some
citations and quotations omitted).
Miller filed a timely notice of appeal, and this Court affirmed the trial
court’s May 30, 2018 order. See id. Miller filed a timely petition for allowance
of appeal to our Supreme Court, which was denied on May 27, 2020. See id.,234 A.3d 407 (Pa. 2020) (Table). Miller did not seek review in the United
States Supreme Court.
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2 18 Pa.C.S.A. § 2702.
3 Id. at § 2701.
4 Id. at § 907.
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On May 18, 2021, Miller, pro se, filed the instant PCRA petition, his first.
The PCRA court appointed counsel, who filed an amended PCRA petition on
December 15, 2021. On March 3, 2022, the PCRA court filed notice of its
intent to dismiss Miller’s PCRA pursuant to Pa.R.Crim.P. 907. Miller did not
file a response, and on May 10, 2022, the PCRA court dismissed Miller’s
petition.
Miller filed a timely notice of appeal. The PCRA court did not order a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Miller did not file such a statement.
Miller now raises the following claims for our review:
(1) [Direct appeal] counsel was ineffective for failing to raise the
issue of recorded prison phone [calls] being admitted.
(2) Trial counsel was ineffective by failing to file a [m]otion to
[r]econsider [s]entence.
(3) The PCRA court erred by failing to conduct an evidentiary
hearing.
Brief for Appellant, at 7 (reordered).
When reviewing the [dismissal] of a PCRA petition, our scope of
review is limited by the parameters of the [PCRA]. Our standard
of review permits us to consider only whether the PCRA court’s
determination is supported by the evidence of record and whether
it is free from legal error. Moreover, in general we may affirm the
decision of the [PCRA] court if there is any basis on the record to
support the trial court’s action; this is so even if we rely on a
different basis in our decision to affirm.
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005)
(quotations and citations omitted).
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For ease of disposition, we address Miller’s claims of ineffectiveness first.
Generally, counsel is presumed to be effective, and “the burden of
demonstrating ineffectiveness rests on [the] appellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that: (1) his underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his [client’s] interests; and, (3) but for counsel’s ineffectiveness[,]
there is a reasonable probability that the outcome of the
challenged proceeding would have been different. Failure to
satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim.
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (internal
citations omitted).
In his first claim, Miller contends that his direct appeal counsel rendered
ineffective assistance by failing to challenge the trial court’s admission of the
prison phone calls. See Brief for Appellant, at 16-17. Miller asserts that the
prison phone calls were not relevant to the Commonwealth’s asserted basis of
establishing motive. Id. at 17. Instead, Miller argues that the phone calls
establish that Miller was attempting to find out who attacked him. Id. Miller
further argues that, therefore, the probative value of the phone calls was
outweighed by their prejudicial impact. Id. Miller is entitled to no relief.
When we review a trial court’s ruling on admission of evidence,
we must acknowledge that decisions on admissibility are within
the sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In addition,
for a ruling on evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party. An abuse of
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discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias[,] or ill-will, as shown by the evidence or the
record, discretion is abused.
Commonwealth v. Talley, 236 A.3d 42, 55 (Pa. Super. 2020) (citations
omitted). “The threshold inquiry with admission of evidence is whether
evidence is relevant.” Commonwealth v. Collins, 888 A.2d 564, 577 (Pa.
Super. 2005). Evidence is relevant if “it has the tendency to make a fact more
or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” Pa.R.E. 401(a)-(b). “Evidence is
relevant if it logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable[,] or supports a reasonable
inference or presumption regarding a material fact.” Commonwealth v.
Drumheller, 808 A.2d 893, 904 (Pa. Super. 2002). “All relevant evidence is
admissible, except as otherwise provided by law. Evidence that is not relevant
is not admissible.” Pa.R.E. 402. “The court may exclude relevant evidence if
its probative value is outweighed by a danger of one of more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
Instantly, at trial, trial counsel objected to the admission of the phone
call recordings, which the trial court overruled. See N.T. Jury Trial, 6/24/15,
at 89-91 (trial court noting several objections to phone calls and transcripts);
id. at 104 (trial counsel reiterating prior objections to phone calls and
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transcripts). On appeal, rather than challenging the relevance of the phone
calls, direct appeal counsel challenged the trial court’s decision to permit the
jury to take a transcript of the phone call recordings to the jury room for
deliberations. See Miller, 172 A.3d at 648. This Court concluded that, if
Miller had intended to challenge the relevance of the phone calls on appeal,
Miller had waived the claim by failing to cite to relevant authority. Id. at n.7
(noting Miller’s claim “suggests that the trial court erred in admitting this
evidence at all,” but Miller failed to cite authorities).
However, the trial court, in its original Rule 1925(a) opinion, addressed
the relevancy of these phone calls as follows:
[Miller] called the same persons that he had been on the telephone
with at the time he attacked [Murray]. [Miller]’s counsel
objected[,] claiming that the taped conversations were irrelevant
and unduly prejudicial because [Miller] peppered his speech with
offensive words.
The trial court listened to the prospective recorded testimony and
determined that the conversations were contextually relevant
because [they] specifically provided [Miller’s] motivation for the
attack upon [Murray], whom [Miller] specifically named in the
telephone call to the same person(s) he had been on the
telephone [with] at the time of the attack. [Miller] revealed that
he had not known [Murray] before the assault[,] but he had
been aware that there had been a price on the head of
“K[ha]yree Murray” for snitching on someone else in the
prison. [Miller] also bragged that he was considered to be a
[“]top dog[”] imbued with certain respect within his prison pod by
the other inmates because of the assault. [Miller] never
claimed he was acting in self-defense when freely
conversing [with] his friends. . . . [Miller] . . . was keenly
aware that the telephone conversations were recorded. The fact
that [Miller] utilized colorfully offensive words at times concretely
illuminated his perspective. As such, [Miller]’s language was not
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so unusually prejudicial as to outweigh the significant probative
value of this evidence. The evidence was properly admitted.
PCRA Court Opinion, 7/7/22, at 8-9, quoting Trial Court Opinion, 6/10/16, at
14-15 (emphasis added).
After reviewing the record, we agree with the PCRA court that these
phone calls were relevant and properly admitted. See Talley, supra.
Moreover, with respect to any prejudice as a result of the language Miller used
in the phone calls, his trial counsel sought a cautionary instruction “about the
language,” and the trial court issued the requested cautionary instruction.
See N.T. Jury Trial, 6/24/15, at 95-96 (trial counsel stating requesting
cautionary instruction, and trial court issuing requested instruction).
Therefore, Miller cannot and has not established that his ineffective assistance
of counsel claim has arguable merit, and he is afforded no relief on this claim.
See Rivera, supra; Holt, supra.In his second claim, Miller argues that his trial counsel rendered
ineffective assistance by failing to file a post-sentence motion challenging the
discretionary aspects of his sentence. See Brief for Appellant, at 18-19.
Preliminarily, we observe that “[c]hallenges to the discretionary aspects
of sentencing are not cognizable under the PCRA.” Commonwealth v.
Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). However, when a petitioner
advances such a claim under the purview of ineffective assistance of counsel,
it does fall under the PCRA’s jurisdiction. See Commonwealth v. Watson,
835 A.2d 786, 801 (Pa. Super. 2003) (“[A] claim regarding the discretionary
aspects of [the defendant’s] sentence, raised in the context of an
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ineffectiveness claim, would be cognizable under the PCRA.”). Accordingly,
Miller’s challenge is cognizable under the PCRA.
Nevertheless, Miller’s brief contains only bald assertions of
ineffectiveness for failing to raise this claim. His entire argument is less than
one-and-a-half pages and contains no citations to the record, and only
boilerplate citations to authority. See Brief for Appellant, at 18-19; see also
Pa.R.A.P. 2119(a) (requiring “discussion and citation of authorities as are
deemed pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (“[W]here an appellate brief fails to provide any discussion of a claim
with citation to relevant authority[,] or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); id. at 925 (“It
is not the role of this Court to formulate [an a]ppellant’s arguments for him.”).
Accordingly, this claim is waived.
For the above reasons, the PCRA court did not err in dismissing Miller’s
PCRA petition, and, thus, we affirm the court’s order. See Commonwealth
v. Hanible, 30 A.3d 426, 452 (Pa. 2011) (PCRA court may dismiss petition
without hearing when satisfied “that there are no genuine issues concerning
any material fact, the defendant is not entitled to post-conviction collateral
relief, and no legitimate purpose would be served by any further proceedings”)
(citation omitted).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
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