Com. v. Parker, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JACK PARKER :
:
Appellant : No. 1251 EDA 2019
Appeal from the Order Entered March 28, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000040-2012
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 12, 2019
Jack Parker appeals pro se from the order that dismissed without a
hearing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
We affirm.1
In November 2011, police responded to a report that Appellant was
stalking his estranged wife and her alleged paramour at their place of
employment. After Appellant admitted to installing a GPS device on his wife’s
vehicle and conceded that he had been trying to catch her cheating on him,
he entered an open guilty plea to stalking, defiant trespass, disorderly
conduct, and interception of wire communication. Appellant was permitted to
withdraw his plea after this Court so ordered and remanded the case for a
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1Also before us is Appellant’s August 9, 2019 motion to file a reply brief. As
Appellant filed his reply brief on August 23, 2019, we deny the motion as
moot.
* Retired Senior Judge assigned to the Superior Court.
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trial, remitting the record to the trial court on May 23, 2014. Commonwealth
v. Parker, 102 A.3d 530 (Pa.Super. 2014) (unpublished memorandum).
Prior to trial, the Commonwealth withdrew the disorderly conduct
charge. At the conclusion of trial, the jury found Appellant guilty of the
remaining offenses, and the trial court sentenced him to a term of fifty-eight
to 124 months of imprisonment, followed by one year of probation. This Court
affirmed the judgment of sentence and permitted Appellant’s direct appeal
counsel to withdraw. Commonwealth v. Parker, 156 A.3d 340 (Pa.Super.
2016) (unpublished memorandum).
Appellant filed a timely pro se PCRA petition in which he generically
alleged that he was entitled to relief pursuant to 42 Pa.C.S. § 9543(a)(2)(i),
(ii), and (viii), but detailed no claims or factual bases for them. Specifically,
Appellant’s petition states as follows:
GROUNDS FOR RELIEF
6) “A violation of the Constitution of this Commonwealth or
the Constitution or laws of this United States which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S. § 9543 (a)(2)(i).
7) “Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S. § 9543 (a)(2)(ii).
8) “A proceeding in a tribunal without jurisdiction.” 42
Pa.C.S. § 9543 (a)(2)(viii).
PCRA Petition, 8/14/17, at 2-3.
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The PCRA court appointed counsel, who ultimately filed an application
to withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). Therein, counsel identified the following issues
as those that Appellant wished to pursue:
1.) Whether trial counsel rendered ineffective assistance by
failing to assert that the case should have been dismissed since
the trial was held more than 120 days after remand for trial by
the Pennsylvania Superior Court, in alleged contravention of
Pa.R.Crim.P. 600?
2.) Whether trial counsel rendered ineffective assistance by
failing to raise pre-trial motions to dismiss the offenses of
disorderly conduct, stalking and interception of communication,
as void for vagueness and/or for lacking probable cause?
3.) Whether trial counsel rendered ineffective assistance by
failing to request dismissal of a juror, which alleged error denied
[Appellant] the right to a fair trial by so undermining the truth
determining process such that no reliable adjudication of guilt
could have taken place?
4.) Whether trial counsel rendered ineffective assistance by
failing to present mitigating factors on [Appellant’s] behalf at
sentencing?
5.) Whether trial counsel rendered ineffective assistance by
failing to permit [Appellant] to make a statement of remorse or
otherwise exercise his right to allocution at sentencing?
6.) Whether appellate counsel rendered ineffective
assistance by virtue of the failure to raise or properly present
some or all of the foregoing issues, suggesting that the same were
meritorious and worthy for appellate review, which failure violated
the Pennsylvania and/or United States Constitutions by
undermining the truth determining process such that no reliable
adjudication of guilt could have taken place?
No-Merit Letter, 12/14/18, at 2-3 (unnecessary capitalization omitted).
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Agreeing with counsel that none of the above issues had merit, the PCRA
court allowed counsel to withdraw and issued notice of its intent to dismiss
Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant filed a response to the notice in which he posited that PCRA counsel’s
assessment was “distorted” and stated an intent to “be marginally . . . more
specific in his claims[.]” Response to Rule 907 Notice, 3/22/19, at 2.
Appellant then proceeded to cite tenets of law regarding, inter alia, ineffective
assistance of counsel, due process, and hearsay, without offering any
explanation of how they pertain to his case.2 See id. at 2-10.
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2 For example, Appellant’s discussions of his “speedy trial” and “sentence”
issues are as follows, in toto :
SPEEDY TRIAL
Pa.R.Crim.P. 600(C)(1); Pa.R.Crim.P. 600(G).
It is the overall (due) diligence of the Commonwealth that
matters not (due) diligence in any particular stage of the
proceedings.
Commonwealth v. Kearse, 890 A.2d 388 (Pa.Super. 2005).
SENTENCE
Challenges to the legality of a sentence cannot be waived
and provide a basis for post-conviction relief even though the
defendant did not seek to modify the sentence.
Commonwealth v. Jones, 932 A.2d 179 (Pa.Super. 2007).
Response to Rule 907 Notice, 3/22/19, at 5 (unnecessary capitalization
omitted).
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The PCRA court dismissed Appellant’s petition by order of March 28,
2019. Appellant filed a timely notice of appeal. The PCRA court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a statement which
verbatim stated as follows:
In the concise statement of matters complained on appeal
in a cordance with Rule 1925(b)(1) of the Pennsylvania Rules of
Appellate Procedure the following issue’s will be raised as follows:
(1.) Ineffective assistance of counsel
(2.) Speedy trial
(3.) Sentence
(4.) Impact of misleading police reports
(5.) Due process on the law
(6.) Hearsay - Rule 802
(7.) Judge personal bias
The above issue’s has been presented in this concise
statement of matter’s complained on appeal in accordance with
Rule 1925(b)(1) of the Pennsylvania Rules of Appellate Procedure.
Concise Statement, 5/6/19, at 2 (unnecessary capitalization omitted). 3
Appellant states one issue for this Court’s consideration: “Whether there
was abuse of discretion for the [PCRA] court to not hold a hearing on the
numerous issue’s [sic] for the [PCRA] court to take into consideration, and the
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3 The PCRA court, describing Appellant’s statement as “a laundry list of catch
phrases and boilerplate assertions of error[,]” issued an opinion urging this
Court to conclude that Appellant waived all issues. PCRA Court Opinion,
6/17/19, at 5. While the PCRA court’s description is not inapt, we decline to
find wholesale waiver. Instead, we will examine whether any issues Appellant
argues on appeal were sufficiently detailed in prior PCRA filings such that the
allegation of error was readily discernable from the 1925(b) statement.
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[PCRA] court undermined the right to an evidentiary hearing pursuant to
Pa.R.Crim.P. 907(a) and 908(A)(2).” Appellant’s brief at v (unnecessary
capitalization omitted).
We begin with the principles pertinent to our review. “Our standard of
review regarding a PCRA court’s order is whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Garcia, 23 A.3d
1059, 1061 (Pa.Super. 2011). Further, “[i]t is an appellant’s burden to
persuade us that the PCRA court erred and that relief is due.”
Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).
There is no absolute right to an evidentiary hearing on a PCRA petition.
See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008).
“To obtain reversal of a PCRA court’s decision to dismiss a petition without a
hearing, an appellant must show that he raised a genuine issue of fact which,
if resolved in his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.” Commonwealth v.
Brown, 196 A.3d 130, 193 (Pa. 2018) (cleaned up). Accordingly, we consider
whether Appellant’s brief convinces us that the issues he properly raised in
the PCRA court warranted an evidentiary hearing.
Appellant’s brief is similar to his response to the PCRA court’s Rule 907
notice. He sets forth various legal principles, with citations to authority, but
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offers little or no explanation as to their relevance to his case. In particular,
we are unable to discern the nature of his claims titled “prosecutorial
misconduct,” “witness false testimony,” or “due process on the law,” from
either his brief or any prior PCRA filing. Indeed, we cannot determine how
these issues align with the “Impact of misleading police reports,” or “Hearsay
- Rule 802” issues stated in Appellant’s Rule 1925(b) statement. Accordingly,
those claims are waived. Commonwealth v. Roche, 153 A.3d 1063, 1072
(Pa.Super. 2017) (“The failure to properly develop a claim renders an issue
waived.”).
As for Appellant’s “speedy trial” claim, to the extent that he is
contending that he should be discharged for a Pa.R.Crim.P. 600 violation, that
claim could have been raised on his direct appeal but was not, rendering it
waived for purposes of the PCRA. See 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.”). To the extent that he contends counsel was ineffective in not
pursuing a Rule 600 claim, as the PCRA court and PCRA counsel noted, trial
counsel did seek dismissal under Rule 600, but the motion was denied. See
Notice of Intent to Dismiss, 2/6/19, at 6; No-Merit Letter, 12/14/18, at 6.
Appellant presents no argument or citation to law and facts that suggest that
appellate counsel was ineffective in not pursuing the issue on direct appeal.
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Therefore, Appellant’s speedy trial issue merits no relief from this Court. See
Roche, supra at 1072.
Similarly, Appellant’s “sentencing” issue―that the trial court failed to
explain the reasons for imposing consecutive sentences―is waived for failure
to raise it on direct appeal. See 42 Pa.C.S. § 9544(b). Further, any argument
that counsel was ineffective for not raising it is waived for lack of development.
Roche, supra at 1072. No relief is due.
Moving on to Appellant’s “Judge personal bias” contention, it does not
appear that Appellant raised this issue in the trial court by filing a motion to
recuse. See Commonwealth v. Timchak, 69 A.3d 765, 774 (Pa.Super.
2013) (“If a party questions the impartiality of a judge, the proper recourse
is a motion for recusal, requesting that the judge make an independent, self-
analysis of the ability to be impartial.”) (internal quotation marks omitted).
Nor has he met the requirement of requesting recusal at “the earliest possible
moment.” See Commonwealth v. Blount, 207 A.3d 925, 930 (Pa.Super.
2019) (internal quotation marks omitted). Accordingly, Appellant has not
established his entitlement to relief based upon his general allegation of
judicial bias.
Appellant’s remaining claims concern allegations of ineffectiveness of
counsel. We note that counsel is presumed to be effective, and a PCRA
petitioner bears the burden of proving otherwise. Commonwealth v.
Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must
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plead and prove (1) the legal claim underlying his ineffectiveness claim has
arguable merit; (2) counsel’s decision to act (or not) lacked a reasonable basis
designed to effectuate the petitioner’s interests; and (3) prejudice resulted.
Id. The failure to establish any prong is fatal to the claim. Id. at 113.
The only allegations of ineffectiveness with any factual development in
Appellant’s brief appear to concern (1) the lack of substance to his post-
sentence request to modify his sentence, and (2) subsequent actions imposed
upon his counsel by the disciplinary board. See Appellant’s brief at A-B.
Regarding the former, Appellant contends that trial counsel “filed a
motion for reconsideration of sentence in which he asserted no grounds for
the request.” Appellant’s brief at B. However, our review of the record reveals
that counsel who was appointed to represent Appellant after trial/sentencing
counsel withdrew obtained an extension of time to file a post-sentence motion
and included therein several grounds for reconsideration: that the sentence
“was excessive in the context of the sentencing guidelines;” that the trial court
did not consider mitigating factors such as Appellant’s “age, his military
service to his country, his employment history, and his physical and emotional
conditions (including post-traumatic stress disorder);” and that Appellant was
not given the opportunity to address the court to express remorse. Post-
Sentence Motion, 7/6/15, at 2.
Furthermore, Appellant does not explain how he was prejudiced by
counsel’s allegedly inadequate performance. Specifically, Appellant was
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required to plead and offer to prove that, had counsel filed a more developed
motion for reconsideration of sentence, he would have received a reduced
sentence from the trial court. See Commonwealth v. Reaves, 923 A.2d
1119, 1132 (Pa. 2007). He has failed to do so. Accordingly, his post-sentence
motion issue warrants no relief from this Court.
As for Appellant’s contention that he is entitled to relief because his trial
counsel was subsequently subjected to disciplinary action, we find the
following deficiencies. Appellant offers no discussion of what relationship, if
any, the disciplinary proceedings bore to counsel’s representation of
Appellant, or even a hint as to the actions or inactions that prompted counsel’s
disbarment. This Court will not presume prejudice based upon counsel’s
subsequent removal from the practice of law. Compare Commonwealth v.
Allen, 48 A.3d 1283, 1288 (Pa.Super. 2012) (holding prejudice not presumed
where counsel was suspended from the bar after representing the appellant
based upon conduct that occurred prior to his representation of him), with
Commonwealth v. Grant, 992 A.2d 152, 162 (Pa.Super. 2010) (concluding
that counsel was per se ineffective where he “had been suspended from the
practice of law for nearly three years and had not taken a CLE class in five
years” at the time he represented the appellant at trial). Without any
development of the claim that Appellant was prejudiced by counsel’s
disbarment, or the actions predicate to it, Appellant is entitled to no relief.
See, e.g., Commonwealth v. McDermitt, 66 A.3d 810, 813-14 (Pa.Super.
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2013) (affirming dismissal of claims of ineffective assistance of counsel where,
inter alia, allegations in petition did not explain specifics of underlying claim
or establish prejudice).
As Appellant has failed to convince this Court that he raised in the PCRA
court any claims founded upon sufficient allegations to raise an issue of fact
concerning his entitlement to relief, we conclude that the PCRA court did not
abuse its discretion in declining to hold a hearing on the issues before
dismissing his PCRA petition. Therefore, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/19
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