Com. v. Ackridge, A. ( 2023 )

J-S45019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2186 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007098-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2187 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007099-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2188 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007100-2016
J-S45019-22
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2189 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007101-2016
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED JULY 19, 2023
Appellant, Amin Ackridge, appeals from the September 29, 2021 order
of 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. §§ 9541-46. Counsel for Appellant has filed a motion to withdraw
as counsel and a no-merit letter in accordance with Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988). We grant counsel’s motion to withdraw and affirm the
order denying Appellant’s petition.
Briefly, following a trial, Appellant was convicted of twenty-eight
offenses, including multiple counts each of attempted murder, robbery,
conspiracy, and possession of a firearm prohibited. The trial court imposed
consecutive guideline-range sentences for each conviction that did not merge,
resulting in an aggregate sentence of 194 to 456 years of imprisonment. After
granting Appellant’s motion for reconsideration, the trial court resentenced
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Appellant to an aggregate sentence of 178 to 416 years of imprisonment.
Appellant timely filed a notice of appeal to this Court. We affirmed the
judgment of sentence. See Commonwealth v. Ackridge, No. 2868 EDA
2017, unpublished memorandum (Pa. Super. filed May 24, 2019). Our
Supreme Court denied Appellant’s petition for allowance of appeal on January
16, 2020. See Commonwealth v. Ackridge, No. 328 EAL 2019 (Pa. 2020).
Appellant timely filed the instant pro se PCRA petition on
November 17, 2020 on all four dockets, claiming that his
convictions or sentences resulted from a violation of the
Constitution, ineffective assistance of counsel, and the imposition
of a sentence greater than the lawful maximum. [The PCRA court]
appointed Peter A. Levin to serve as PCRA Counsel for Appellant.
On June 11, 2021, Appellant’s PCRA counsel filed a no-merit letter
with [the PCRA court] pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) [(en banc)]. In this letter, counsel stated
that although Appellant’s PCRA petition was timely and Appellant
was eligible for relief, the issues Appellant raised were without
arguable merit. Appellant’s PCRA counsel additionally requested
permission to withdraw as counsel of record for Appellant.
On July 12, 2021, after independently reviewing the Appellant’s
PCRA petition, PCRA counsel’s Turner/Finley no-merit letter,
and the record as a whole, [the PCRA court] determined that the
issues raised by Appellant in his PCRA petition were without merit
and filed a [t]wenty-[d]ay Notice to Dismiss pursuant to
Pa.R.Crim.P. 907. On September 29, 2021, [the PCRA court]
entered an Order formally dismissing Appellant’s PCRA petition,
permitting Peter A. Levin to withdraw as counsel, and appointing
D. Wesley Cornish to serve as PCRA appellate counsel for
Appellant. On October 21, 2021, Appellant filed a timely notice of
appeal from the dismissal of his PCRA petition without an
evidentiary hearing. On October 22, 2021, [the PCRA court]
entered an order directing Appellant to file a Concise Statement
of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b),
which Appellant filed on November 4, 2021.
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PCRA Court Opinion, 4/7/22, at 1-4.
We first address counsel’s application to withdraw. In order for PCRA
counsel to withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the nature
and extent of counsel’s review of the record; lists the appellate
issues; and explains why those issues are meritless.
(2) PCRA counsel must file an application to withdraw; serve the
PCRA petitioner with the application and the no-merit letter; and
advise the petitioner that if the Court grants the motion to
withdraw, the petitioner can proceed pro se or hire his own lawyer.
(3) This Court must independently review the record and agree
that the appeal is meritless.
Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011).
Previously, we denied counsel’s application to withdraw, noting that
withdrawal under Anders1 was not appropriate, and ordered counsel to file
either a proper Turner/Finley brief or a proper advocate brief.
After giving counsel time to fix errors, counsel filed a new Anders brief,
identical to the one we rejected. We do not take counsel’s failure to comply
with our memorandum lightly. While counsel disregarded our directive on the
filing of a proper brief, he complied with the remaining portion of our directive
by filing a copy of the letter he sent to Appellant along with the motion to
withdraw.
At this juncture, therefore, we must determine whether we can accept
counsel’s Anders brief in lieu of a Turner/Finley no-merit letter. Generally,
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1 Anders v. California, 386 U.S. 738 (1967).
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we can because an Anders brief provides greater protection to Appellant.
Widgins, 29 A.3d at 817 n.2 (accepting Anders brief in lieu of Turner/Finley
letter).
Upon review, we conclude that counsel complied with the procedural
and substantive requirements for withdrawal. Counsel stated in his motion to
withdraw that he found Appellant’s issues lacked merit after conducting a
review of the record. Motion for Leave to Withdraw as Counsel, 5/12/23, at
1. Counsel attached to his motion a copy of the letter he sent to Appellant
advising him he could retain private counsel or proceed pro se. Id. Counsel
also provided Appellant with a copy of the brief, which summarizes the facts
and procedural history, includes issues that could arguably support Appellant’s
appeal, and explains why the issues are meritless.
Having concluded that counsel’s petition to withdraw is Turner/Finley
compliant, we conduct an independent review of the record in light of the
PCRA petition and the issues set forth within it, as well as of the contents of
the petition of counsel to withdraw. If we agree with counsel that the claims
are without merit, we will permit counsel to withdraw and deny relief. See,
e.g., Commonwealth v. Park, 2021 WL 4477468 (Pa. Super. filed
September 30, 2021).2
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2 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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Appellant presents the following issue for our consideration:
Did the trial court err, abuse its discretion, and/or make a mistake
of law when it denied Appellant’s [PCRA] petition for relief and
new trial . . . by accepting PCRA counsel’s Finley Letter, negating
improper consolidation, an illegal sentence, removal of juror,
introduction of testimony about a Delaware robbery case, and
allowance of skin tone testimony without an evidentiary hearing?
Appellant’s Brief at 2.
When reviewing the propriety of an order pertaining to PCRA relief,
we consider the record in the light most favorable to the prevailing
party at the PCRA level. This Court is limited to determining
whether the evidence of record supports the conclusions of the
PCRA court and whether the ruling is free of legal error. We grant
great deference to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support
in the certified record. However, we afford no such deference to
the post-conviction court’s legal conclusions. We thus apply a de
novo standard of review to the PCRA [c]ourt’s legal conclusions.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
Appellant claims that trial counsel was ineffective for not opposing the
consolidation of the instant pending criminal actions.3 We agree with counsel
that the claim has no merit.
To the contrary, the record reflects that Appellant’s trial counsel
did oppose the Commonwealth’s motion at a hearing on March 21,
2017. In this hearing, Appellant’s trial counsel argued that the
Commonwealth had failed to establish similar geographical
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3 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) 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. Commonwealth v. Reyes-Rodriguez,
111 A.3d 775, 780 (Pa. Super. 2015), appeal denied, 123 A.3d 331 (Pa.
2015).
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proximity between the underlying offenses in Appellant’s four
dockets[.] Appellant’s trial counsel contended that the
Commonwealth had not “under the law . . . met its burden for
consolidation and therefore “consolidation [was] not appropriate.”
[The trial court] ultimately granted the Commonwealth’s motion
for consolidation, a decision which was previously challenged by
Appellant on direct appeal and affirmed by the Superior Court of
Pennsylvania. See Commonwealth v. Ackridge, No. 2868 EDA
2017, at 5-6 [(Pa. Super. filed May 24, 2019)].
PCRA Court Opinion, 4/7/22, at 6 (internal citations omitted).
Next, Appellant alleges that his trial counsel was ineffective for allowing
Appellant to be sentenced to an imprisonment term that exceeded the legal
maximum. The claim is without merit.
None of the sentences imposed by [the trial court] exceeded the
statutory maximum. Appellant was first convicted at trial of four
counts of attempted murder with serious bodily injury, which
carries a statutory maximum sentence of forty (40) years. 18
Pa.C.S.A. § 1102(c). On each count, [the trial court] sentenced
Appellant to a consecutive term of twenty (20) to forty (40) years
of confinement. Appellant’s sentences for attempted murder
therefore did not exceed the statutory maximum. Appellant was
also convicted of four counts of aggravated assault. Each count
merged with the sentences imposed for Appellant’s convictions for
attempted murder, resulting in no further penalties.
Additionally, Appellant was convicted of six counts of robbery and
six counts of conspiracy to commit robbery. Both offenses are
graded as felonies of the first degree, which carry a statutory
maximum sentence of twenty (20) years. 18 Pa.C.S.A. § 1103(1).
On each count of robbery and conspiracy to commit robbery, [the
trial court] sentenced Appellant to a consecutive term of seven (7)
to twenty (20) years of confinement. [The trial court] later
vacated duplicative sentences for two counts of conspiracy to
commit robbery without disturbing the sentences already imposed
on the other four counts. Appellant’s sentences for both robbery
and conspiracy to commit robbery therefore also did not exceed
the statutory maximum.
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Finally, Appellant was convicted of eight violations of the Uniform
Firearms Act – four counts each of persons not to possess, use,
manufacture, control, sell or transfer firearms (“VUFA § 6105”)
and firearms not to be carried without a license (“VUFA § 6106”).
VUFA § 6105 is graded as a felony of the second degree, which
carries a statutory maximum sentence of ten (10) years.
18 Pa.C.S.A. § 1103(2). On each count, [the trial court]
sentenced Appellant to a consecutive term of four (4) to eight (8)
years of confinement. VUFA § 6106 is graded as a felony of the
third degree, which carries a statutory maximum sentence of
seven (7) years. 18 Pa.C.S.A. § 1103(3). On each count [the
trial court] sentenced Appellant to a consecutive term of three (3)
to six (6) years of confinement. Appellant’s sentences for his
violations of the Uniform Firearms Act therefore did not exceed
the statutory maximum.
Id. at 6-7 (unnecessary capitalization omitted).
In light of the foregoing, we agree with counsel that the instant claim of
ineffective assistance of counsel is also without merit.
Finally, counsel represents that the remaining claims (improper removal
of a juror, improper introduction of evidence about a Delaware robbery case,
and improper allowance of skin tone testimony without an evidentiary hearing)
are not cognizable under the PCRA because they were either previously
litigated and/or are waived. We agree.4
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4 See 42 Pa.C.S.A. § 9543(a)(3) (listing among the eligibility factors for PCRA
relief “[t]hat allegation of error has not been previously litigated or waived.”).
For purposes of the PCRA, an issue has been previously litigated if: (i) the
highest appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue; or (ii) it has been raised
and decided in a proceeding collaterally attacking the conviction or sentence.
42 Pa.C.S.A. § 9544(a). For purposes of the PCRA, an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
(Footnote Continued Next Page)
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Appellant previously argued on direct appeal that [the trial court]
erred and abused its discretion when it removed a juror and
replaced him with an alternate and when it granted the
Commonwealth’s request to present the details of Appellant’s
arrest for robbery in Delaware. On May 24, 2019, the Superior
Court of Pennsylvania reviewed [the trial court’s] rulings and
affirmed Appellant’s judgments of sentence, discerning “no abuse
of discretion on the part of the trial court as to the issues raised
by Appellant.” Commonwealth v. Ackridge, No. 2868 EDA
2017, at 5 [(Pa. Super. filed May 24, 2019)]. Appellant
subsequently filed a petition for allowance of appeal with the
Supreme Court of Pennsylvania on June 24, 2019, which was
denied on January 16, 2020. These two claims were thus finally
litigated and disposed of on Appellant’s direct appeal.
Accordingly, they have been previously litigated for purposes of
the PCRA and are not reviewable under the PCRA.
Id. 9-10.
Appellant’s claim that [the trial court] erred by allowing testimony
without a caution or warning to the jury about the perpetrator’s
skin tone was not previously raised on direct appeal. Appellant is
procedurally barred from litigating this claim of trial court error
under the PCRA as it was not framed as part of claim cognizable
under the PCRA, like the ineffective assistance of counsel.
Appellant’s final claim is thus waived because he could have raised
it before trial, at trial, or on appeal, but failed to do so until he
filed the instant pro se PCRA petition.
Id. at 10.
In summary, our review of the record confirms the PCRA court’s
assessment that each of Appellant’s arguments is either lacking in merit,
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unitary review, on appeal, or in a prior state postconviction proceeding.
42 Pa.C.S.A. § 9544(b).
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previously litigated, waived, or otherwise not cognizable under the PCRA.5 We
therefore affirm the PCRA court’s order.
Order affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2023
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5 Appellant also argues that the PCRA court erred in denying his PCRA petition
without holding a hearing on his petition. The PCRA court need not hold a
hearing on every issue appellant raises, as a hearing is only required on
“genuine issues of material fact,” which, for the reasons discussed above, is
not the case here. Indeed, the right to an evidentiary hearing on a post-
conviction petition is not absolute. See, e.g., Commonwealth v. Jordan,
772 A.2d 1011, 1014 (Pa. Super. 2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support in either the record or from other evidence. Id.- 10 -