Com. v. Rosario, S. ( 2023 )

J-S09024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUN ROSARIO :
:
Appellant : No. 602 WDA 2022
Appeal from the PCRA Order Entered May 4, 2022
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001818-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUN DENNIS ROSARIO :
:
Appellant : No. 603 WDA 2022
Appeal from the PCRA Order Entered May 4, 2022
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001227-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUN DENNIS ROSARIO :
:
Appellant : No. 604 WDA 2022
Appeal from the PCRA Order Entered May 4, 2022
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001821-2011
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
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MEMORANDUM BY BOWES, J.: FILED: June 28, 2023
Shaun Dennis Rosario appeals pro se from the May 4, 2022 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). We vacate the PCRA court’s order and remand for further
proceedings consistent with this memorandum.
By way of background, Appellant was charged at the above-referenced
docket numbers due to three incidents occurring between May 9 and 10, 2011.
Appellant was charged at docket number 1818-2011 (“Theft Docket”) with
multiple theft and summary offenses based upon Appellant allegedly entering
another individual’s dump truck and stealing a hammer on May 9, 2011.
Later that morning, Appellant was found unresponsive from a drug
overdose with the hammer beneath his prone body. Appellant was
transported to Mon Valley Hospital for treatment. Upon awakening in the
hospital, Appellant became irate and combative. Appellant’s ensuing conduct
was previously summarized as follows:
When he regained consciousness, Appellant expressed his desire
to be released from the hospital. The treating physician, Dr. Gene
Manzetti, M.D., explained to Appellant the necessity that Appellant
remain under the care of the hospital. Appellant became upset at
that news and insisted that he had the right to leave. At this
juncture, Dr. Manzetti informed Appellant that there was a
warrant out for his arrest and when he was discharged from
medical care the police would have to be informed regarding the
warrant.
Testimony demonstrated that upon hearing this information
Appellant became irate and began yelling at Dr. Manzetti.
However, Appellant ultimately decided to stay at the hospital
overnight. [At a]pproximately 1:15 a.m. on May 10, 2011,
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Appellant became agitated and demanded information about his
treatment. [Stacy Hoffman, R.N.,] provided him with the results
of his toxicology screen. Appellant read over the report and then
queried whether there was anyone in the building with weapons.
Appellant then began to stand up with the aid of Ms. Hoffman and
nursing assistant Carol May. Nurse Hoffman testified that
Appellant then suddenly pushed past them and slammed the door
shut, trapping everyone inside. Appellant expressed that he was
not going to go to jail and no one was leaving the room until he
could go home.
Security was called to the area. Appellant blockaded the
door with his body and pulled out his IV and catheter. As a result,
blood began pouring out of the IV and Appellant began
deliberately spraying it all over the room. Testimony
demonstrated that Appellant, who had previously been diagnosed
with hepatitis C, spilled blood onto Ms. Hoffman. Appellant then
demanded Ms. Hoffman remove the catheter. Appellant permitted
another nurse to retrieve a needleless syringe, which was
necessary for the removal, and provide it to Ms. Hoffman. After
the catheter was removed, two security guards, Edward Swick and
Robert Ashbaugh, arrived and attempted to make entry to the
room, but Appellant continued to block the door with his body.
Appellant picked up the syringe and began waving it around
and threatening Ms. Hoffman, Ms. May and the security guards
stating he would stab them. Appellant then attempted to grab a
chair at which time he took some of his weight off of the door and
security was able to make entry into the room. Appellant then
grabbed Ms. May and put her in front of him to block himself from
security. He then lifted Ms. May off of the ground. While Ms. May
was still in his grasp, the security guards grabbed Appellant and
put him onto the bed. He continued threatening that he was going
to stab everyone and making motions to that effect. Testimony
demonstrated that he swung at the upper body and neck areas of
the security guards and nurses numerous times with the syringe.
Ms. May was finally freed from Appellant’s grasp and she and Ms.
Hoffman were able to exit the room. Appellant finally was
subdued on the hospital bed, but not before he suddenly lunged
up at the security guards and grabbed their shirts and attempted
to take pens from the front pockets of their shirts.
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Commonwealth v. Rosario (“Rosario I”), 136 A.3d 1028 (Pa.Super. 2016)
(unpublished memorandum at 2-4) (cleaned up). As a result, Appellant was
charged at docket number 1821-2011 (“Hospital Docket”), with numerous
assault-related crimes for his actions against the nurses and security guards.
Shortly thereafter, Appellant was discharged by the hospital, transferred
to the custody of the police, and handcuffed and shackled. Constable Walter
Fronzaglio placed Appellant in the rear of a van for transport to the
Washington County Correctional Facility. The van did not have a partition
between the driver and the rear passengers, but Appellant’s leg shackles were
secured to the frame of his seat. While initially calm and conversive with
Constable Fronzaglio, Appellant, seemingly unprovoked, once again became
combative:
Appellant began screaming “I want out of this fucking van. I’m
getting the fuck out of here. I want to be free.” Constable
Fronzaglio testified that Appellant then jumped on him while he
was driving and reached for his gun on his right hip. Constable
Fronzaglio was carrying a .40 caliber pistol in a leather snap
holster. In response, Constable Fronzaglio let go of the steering
wheel and grabbed Appellant’s hand that was on his gun.
Constable Fronzaglio also grabbed Appellant’s head and tried to
pull him away from his person. During the struggle the van veered
off the road and flipped over.
The van landed upside down on an embankment. Constable
Fronzaglio testified he could not see anything and was disoriented.
He believed he was lying on the roof of the van and was still
struggling with Appellant. Appellant then tried to crawl out of the
van. Constable Fronzaglio began punching him in the head and
yelled for Appellant to get back into the van. Constable Fronzaglio
was able to free himself and crawl out of an opening near the
passenger side window and exited the van. Appellant was still
trapped in the van.
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Upon noticing Constable Fronzaglio waving his arms on the
side of the road, a truck driver, Lawrence Prenni, called 9-1-1 and
pulled over to see if he could be of assistance. Constable
Fronzaglio asked Mr. Prenni to assist him in pulling Appellant out
of the van. As the Constable was pulling Appellant from the
wreckage, Appellant stabbed Constable Fronzaglio in the calf with
a knife. Mr. Prenni grabbed the knife from Appellant and threw it.
Mr. Prenni subdued Appellant until the Pennsylvania State Police
[“PSP”] arrived.
The [PSP] arrived at the scene and were able to pull
Appellant from the van. Constable Fronzaglio testified that he had
articles from other prisoners in his van that he holds in safe
keeping until offenders retrieve them, as such articles are not
permitted to go into the jail. He testified he had a knife in the van
from such an instance. Appellant was searched at the scene by
the [PSP] and they discovered Appellant had one of the
Constable’s spare .40 caliber magazines in his pocket.
Constable Fronzaglio was taken to the hospital by the
Donora Police. At Mon Valley Hospital he was treated for a stab
wound to the right calf and bumps and bruises sustained during
the crash. Appellant was taken into custody.
Id. (unpublished memorandum at 4-6) (cleaned up). Based upon the
foregoing, Appellant was charged at docket number 1227-2011 (“Escape
Docket”) with several assaultive and escape-related crimes.
While being transported to his preliminary hearing by PSP, the troopers
told Appellant that they did not want any problems on the return trip to the
Washington County Correctional Facility. Appellant, referencing the manner
in which he was secured inside the PSP vehicle, replied, “If I was locked up
like this in the first place, none of this would have happened[.]” Id.(unpublished memorandum at 6) (cleaned up).
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In 2013, Appellant proceeded to a consolidated jury trial on all three
dockets.1 Appellant was acquitted of all charges at the Theft Docket. At the
Hospital Docket, the jury convicted Appellant of two counts each of terroristic
threats, false imprisonment, and unlawful restraint, and four counts of simple
assault. The jury convicted Appellant at the Escape Docket with two counts
each of aggravated assault and simple assault, and one count each of assault
by prisoner, disarming law enforcement officer, and criminal attempt (escape
with a deadly weapon).2 The trial court sentenced Appellant to a total
aggregate sentence of seventeen to thirty-four years of incarceration.
Appellant filed a post-sentence motion, which the trial court denied. On
direct appeal to this Court, Appellant challenged the effective assistance of
counsel, the constitutionality of the sentencing guidelines, the discretionary
aspects of his sentence, and the calculation of Appellant’s credit for time
served. We dismissed Appellant’s ineffective-assistance-of-counsel claim
without prejudice to raise it in a collateral proceeding, deemed the
underdeveloped guidelines issue waived, and affirmed Appellant’s judgment
of sentence. See Rosario I, supra.
____________________________________________
1 Appellant was appointed several different attorneys to represent him pre-
trial, all of whom sought to withdraw due to various conflicts. Of relevance to
the instant appeal, John Puskar, Esquire, was appointed to represent Appellant
on April 11, 2013. Subsequently, Thomas Agrafiotis, Esquire, was appointed
to represent Appellant. Attorney Agrafiotis represented Appellant at trial and
on appeal. However, as Appellant wished to challenge counsel’s effectiveness
on direct appeal, Appellant was appointed new counsel, Renee Colbert, for
appeal purposes.
2 He was found not guilty of one charge of aggravated assault.
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Thereafter, Appellant initiated the instant PCRA proceedings by timely
filing pro se his first PCRA petition. Therein, he raised several claims of
ineffective assistance of counsel, trial court error, and constitutional violations.
The PCRA court ultimately appointed Molly Maguire Gaussa, Esquire, who filed
a no-merit letter and sought leave 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). The PCRA court granted Attorney
Gaussa’s petition to withdraw and issued notice pursuant to Pa.R.Crim.P. 907
of its intent to dismiss Appellant’s PCRA petition without a hearing. On June
25, 2019, Appellant filed a response challenging the assistance of Attorney
Gaussa, and the PCRA court entered an order dismissing the petition.
Appellant did not receive a copy of the dismissal order. Nearly a year later,
Appellant pro se sought an extension of time to file a notice of appeal, which
the PCRA court denied.
On October 29, 2020, Appellant filed a single notice of appeal at all three
docket numbers, challenging the dismissal of his PCRA petition. The PCRA
court ordered Appellant to file a concise statement of matters complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a statement raising
fourteen challenges. The PCRA court, in its responsive Rule 1925(a) opinion,
found the appeal to be untimely and Appellant’s claims waived because he
incorporated by reference other filings into his Rule 1925(b) statement. In
the alternative, the court addressed the merits of the claims and determined
that they were all either waived for failure to raise in the PCRA court or lacked
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merit. This Court, before reaching the merits of Appellant’s claims, quashed
the appeal as premature because we found there was no final, appealable
order entered on the docket. See Commonwealth v. Rosario (“Rosario
II”), 276 A.3d 245 (Pa.Super. 2022) (non-precedential decision at 5). We
directed that once the clerk of courts served the order dismissing Appellant’s
petition, Appellant would have thirty days to file separate notices of appeal at
each docket. See id.The clerk of courts noted service of the dismissal order on Appellant on
May 4, 2022. These timely-filed notices of appeal followed.3 The PCRA court
did not order a supplemental Rule 1925(b) statement and Appellant did not
file one. The PCRA court nonetheless filed a supplemental Rule 1925(a)
opinion.4 In his statement of questions, Appellant presents the following
issues for our consideration:
1. Did the PCRA court err in failing to hold an evidentiary
hearing on [Appellant’s] post-conviction claim of trial
counsel[’]s ineffectiveness.
____________________________________________
3 This Court sua sponte consolidated the appeals.
4 Both the Commonwealth and the PCRA court aver that Appellant’s claims are
waived for failing to include them with sufficient detail in his Rule 1925(b)
statement. However, since Appellant’s Rule 1925(b) statement was filed at
the quashed appeal and the PCRA court did not order Appellant to file a concise
statement as part of the instant appeal, we decline to find waiver on this basis.
That being said, our leniency is not boundless. See Commonwealth v.
Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (“Although this Court is willing
to liberally construe materials filed by a pro se litigant, pro se status confers
no special benefit upon the appellant.” (cleaned up)).
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2. Did PCRA court err in accepting PCRA counsel’s “no-merit
letter.”
3. Did PCRA counsel err in failing to investigate and amend the
PCRA petition pursuant to Rule 905(a)(b).
Appellant’s brief at 2. However, in the argument section of his brief he
presents eleven issues and neglects to present any argument specific to the
issues raised in his statement of questions. See id. at 8 (summary of
argument, which includes two sentences baldly asserting error as to the lack
of an evidentiary hearing and the adequacy of the no-merit letter). This Court
will not develop Appellant’s arguments for him. See Commonwealth v.
Johnson, 985 A.2d 915, 925 (Pa. 2009). Accordingly, his claims that the
PCRA court erred in accepting counsel’s Turner/Finley letter and in
dismissing his petition without a hearing are waived. See Johnson, supra
at 925 (finding issues waived where the brief lacked any development of the
claims in the argument section and did not cite to any authority).
We now turn to the eleven issues raised in the argument section of his
brief. He raises two claims of trial court error. See Appellant’s brief at 12-14
(claiming the trial court abused its discretion in not allowing Appellant’s expert
witness to testify at trial that “Appellant was in a state of delirium” and
therefore unable to form the specific intent necessary for the assaultive and
disarming crimes at the Hospital and Escape Dockets), and at 28-29 (claiming
the trial court abused its discretion in denying Attorney Agrafiotis’s pre-trial
request for a continuance to prepare for trial and PCRA counsel was ineffective
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for failing to raise this PCRA claim). Since Appellant could have raised these
claims on direct appeal but failed to do so, they are waived. See
Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001); 42 Pa.C.S.
§ 9544(b) (“[A]n issue is waived if the petitioner could have raised it but failed
to do so before trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding.”).
We next turn to Appellant’s remaining issues, which are couched within
PCRA counsel’s purported ineffectiveness for failing to raise specific claims in
an amended PCRA petition. We consider these mindful of the following. “Our
standard of review of a PCRA court’s dismissal of a PCRA petition is limited to
examining whether the PCRA court’s determination is supported by the record
evidence and free of legal error.” Commonwealth v. Whitehawk, 146 A.3d
266, 269 (Pa.Super. 2016) (cleaned up). Counsel is presumed to be effective
and the petitioner bears the burden of proving otherwise. Commonwealth
v. Johnson, 236 A.3d 63, 68 (Pa.Super. 2020) (en banc) (citation omitted).
To do so, he must establish the following three elements:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
petitioner 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.
Id. (citations omitted). Failure to prove any of the three elements will result
in dismissal of the ineffectiveness claim. Id. (citation omitted).
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Most of Appellant’s claims aver that PCRA counsel was ineffective for
failing to raise claims as to the ineffectiveness of appellate and/or trial counsel.
“In determining a layered claim of ineffectiveness, the critical inquiry is
whether the first attorney that the defendant asserts was ineffective did, in
fact, render ineffective assistance of counsel. If that attorney was effective,
then subsequent counsel cannot be deemed ineffective for failing to raise the
underlying issue.” Commonwealth v. Burkett, 5 A.3d 1260, 1270
(Pa.Super. 2010).
As a first-time PCRA petitioner, Appellant “enjoys a well-recognized right
to legal representation during this initial collateral review of his judgment of
sentence. In this context, the right to counsel conferred on initial PCRA review
means an enforceable right to the effective assistance of counsel.”
Commonwealth v. Betts, 240 A.3d 616, 621 (Pa.Super. 2020) (cleaned up).
As a means of enforcing this right, our Supreme Court has clarified that “a
PCRA petitioner may, after a PCRA court denies relief, and after obtaining new
counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the
first opportunity to do so, even if on appeal.” Commonwealth v. Bradley,
261 A.3d 381, 401 (Pa. 2021) (cleaned up). In these scenarios, Pa.R.A.P.
302(a) waiver does not apply. Id. at 405. Our Supreme Court outlined the
following procedure for appellate courts to follow in reviewing claims of
ineffective assistance of PCRA counsel raised for the first time on appeal from
the dismissal of a PCRA petition:
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In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such
claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petition would be required to
provide more than mere boilerplate assertions of PCRA counsel’s
ineffectiveness; however, where there are material facts at issue
concerning claims challenging counsel’s stewardship and relief is
not plainly unavailable as a matter of law, the remand should be
afforded.
Id. at 402 (cleaned up).
In other words, “appellate courts will have the ability to grant or deny
relief on straightforward claims, as well as the power to remand to the PCRA
court for the development of the record.” Id. at 403. Thus, our Supreme
Court reaffirmed the preference for evidentiary hearings and the “general rule”
that “a lawyer should not be held ineffective without first having an
opportunity to address the accusation in some fashion.” Commonwealth v.
Colavita, 993 A.2d 874, 895 (Pa. 2010), overruled on other grounds by
Bradley, supra. Moreover, the appropriate forum for the development of an
evidentiary record on PCRA claims is the PCRA court as the appellate courts
do not serve as fact-finding courts. See Commonwealth v. Shaw, 247 A.3d
1008, 1017 (Pa. 2021).
Here, Appellant’s claims pertaining to PCRA counsel’s stewardship can
be summarized as follows:
1. Trial, appellate, and PCRA counsel failed to raise the claim
that his convictions for assault by a prisoner and attempted
escape should be reversed because the arrest warrant for
the Theft Docket was illegal. See Appellant’s brief at 9-10.
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2. PCRA counsel should have raised trial counsel’s
ineffectiveness for failing to argue that the evidence was
insufficient for assault by a prisoner because Appellant did
not meet the definition of a prisoner. Id. at 11.
3. PCRA counsel failed to raise a legality of sentencing issue
based upon the argument that Appellant was convicted of
assault by a prisoner and attempted aggravated assault for
the same conduct of stabbing Constable Fronzaglio, and his
conviction for escape was impossible because he was
handcuffed and shackled and never attempted to escape.
Id. at 15.
4. PCRA counsel failed to raise trial counsel’s ineffectiveness
for not objecting to a violation of the six-hour arraignment
rule at each docket. Appellant claims prejudice because his
pre-arraignment statements were used against him at trial.
Id. at 16-17.
5. PCRA counsel failed to raise the ineffective assistance of
Attorney Puskar for misadvising Appellant about a plea
offer. Id. at 18-19.
6. PCRA counsel failed to raise the ineffectiveness of Attorneys
Puskar and Agrafiotis for failing to move for suppression of
Appellant’s statements given at the hospital without
Miranda warnings, and Attorney Agrafiotis for failing to
attack the reliability and voluntariness of the statements at
trial. Id. at 20-24.
7. PCRA counsel failed to present Appellant’s claim that
Attorneys Puskar and Agrafiotis did not properly argue for
admission of expert witness testimony at trial regarding
Appellant’s mental illness and the effect of the drugs
ingested voluntarily by Appellant and administered to
Appellant during his stay at the hospital, insofar as they
related to Appellant’s state of mind and involuntary
intoxication as a defense. Id. at 25-27.
8. PCRA counsel failed to argue that several officers of the
court obstructed the administration of justice from the time
of the preliminary hearing to the instant PCRA proceedings,
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due in large part to the absence of requested transcripts.
Id. at 30-32.
9. PCRA counsel failed to present Appellant’s claim that he was
prejudiced by the violation of the sequestration order. With
regard to the underlying substance of the violation,
Appellant contends that the transcript has been modified to
conceal the violation. Id. at 33-35.
Upon review of the certified record, we are satisfied that Appellant raised
PCRA counsel’s ineffectiveness at the earliest opportunity. Indeed, Appellant
first raised PCRA counsel’s ineffectiveness in response to the PCRA court’s Rule
907 notice. In the order denying Appellant’s petition for an extension of time
to file a notice of appeal, the PCRA court stated that it reviewed Appellant’s
response prior to dismissing his PCRA petition. See PCRA Court Order,
8/13/20, at unnumbered 1. However, our review of the certified record does
not evince that the PCRA court considered Appellant’s properly-raised claims
of PCRA counsel’s ineffectiveness prior to dismissing the PCRA petition. In
fact, we observe that the dismissal order, which was filed three hours after
Appellant’s response, does not reference Appellant’s response or his assertion
that PCRA counsel rendered ineffective assistance.
Appellant has raised more than mere boilerplate assertions but has not
had the opportunity to develop the claims outside of the pro se argument in
his brief. See Bradley, supra, at 402. As “relief is not plainly unavailable
as a matter of law,” we conclude that “remand should be afforded” with
respect to these claims. Id. Accordingly, we vacate the order dismissing
Appellant’s PCRA petition and remand for the appointment of counsel to assist
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Appellant in litigating his ineffective assistance of counsel claims pertaining to
PCRA counsel. Newly-appointed counsel shall file a brief discussing those
claims within a reasonable time frame. See Betts, supra at 625.
“Thereafter, the PCRA court shall have the discretion to proceed as it deems
fit under Pennsylvania law and the Pennsylvania Rules of Criminal Procedure,”
including granting new counsel the opportunity to file an amended petition on
Appellant’s behalf, holding an evidentiary hearing, or issuing notice of its
intent to dismiss the petition without a hearing. Id.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2023
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