Com. v. Cooper, D. ( 2022 )


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  • J-S04013-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DAYQUINE COOPER                            :
    :
    Appellant               :   No. 671 EDA 2021
    Appeal from the PCRA Order Entered March 5, 2021
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0008449-2016
    BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY BENDER, P.J.E.:                         FILED FEBRUARY 8, 2022
    Appellant, Dayquine Cooper, appeals pro se from the post-conviction
    court’s March 5, 2021 order denying his timely-filed petition under the Post
    Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
    we affirm.
    We need not reproduce the PCRA court’s summary of the facts
    underlying Appellant’s conviction for purposes of this appeal. See PCRA Court
    Opinion (PCO), 5/27/21, at 4-5 (quoting Trial Court Opinion, 7/29/19, at 2-
    5). We only note that on October 18, 2018, Appellant was convicted by a jury
    of various offenses, including attempted murder, aggravated assault, and
    firearm crimes. He was sentenced on December 14, 2018, to an aggregate
    term of 32½ to 77 years’ incarceration. Appellant filed a timely appeal, and
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S04013-22
    this Court affirmed his judgment of sentence on May 26, 2020.             See
    Commonwealth v. Cooper, 
    237 A.3d 483
     (Pa. Super. 2020) (unpublished
    memorandum). “Although [Appellant] filed a petition for allowance of appeal
    [with] the Pennsylvania Supreme Court, the petition was untimely and was
    therefore administratively closed on June 30, 2020.” PCO at 2.
    Appellant thereafter filed a timely, pro se PCRA petition on September
    21, 2020.
    Stephen O’Hanlon, Esquire was appointed to represent [Appellant]
    on October 16, 2020. On November 19, 2020, pursuant to
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa. Super. 1988),
    [Attorney] O’Hanlon filed a letter stating there was no merit to
    [Appellant’s] claims for collateral relief. See Finley Letter of
    [Attorney] O’Hanlon, filed 11/19/2020 (“Finley Letter”).
    On November 24, 2020, [Appellant] filed a “Motion for Correction
    of an Error of the P.C.R.A. Court” asserting that he wished to
    represent himself and that he had previously made this request in
    his PCRA Petition (“Motion for Correction of Error”). On December
    16, 2020, [Appellant] filed a response to the Finley Letter
    (“Response to Finley Letter”). On January 15, 2021, the [c]ourt
    issued notice pursuant to Pa.R.Crim.P. 907 (“907 Notice”) of its
    intent to dismiss [Appellant’s] PCRA [p]etition without an
    evidentiary hearing. On February 2, 2021, [Appellant] filed a
    response to the 907 Notice (“907 Response”). On February 3,
    2020, [Appellant] filed an additional response entitled “Objection
    Notice to Attorney Finley Letter and Court Notice Pursuant to PA
    Rule of Criminal Procedure 907” (“Supplemental 907 Response”)
    raising a number of new issues. On March 1, 2021, [Attorney]
    O’Hanlon filed a supplemental Finley letter (“Supplemental
    Finley Letter”). On March 5, 2021, the [c]ourt formally dismissed
    [Appellant]’s PCRA Petition and granted [Attorney] O’Hanlon’s
    motion to withdraw his appearance.3
    3On March 5, 2021, the same day that the PCRA [petition]
    was dismissed, [Appellant] mailed a response to the
    Supplemental Finley Letter.   This response was not
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    received by the [c]ourt until March 25, 2021, and did not
    raise any new claims.
    On March 16, 2021, [Appellant] filed a [n]otice of [a]ppeal from
    the [c]ourt’s dismissal of his PCRA Petition.[1]            Although
    [Appellant] attached a [Pa.R.A.P. 1925(b) concise s]tatement of
    [e]rrors [complained of on appeal] to the [n]otice of [a]ppeal, the
    [c]ourt issued an order on April 6, 2021, pursuant to Rule
    1925(b)…, directing [Appellant] to file again a [c]oncise
    [s]tatement of [e]rrors [c]omplained of on [a]ppeal by April 27,
    2021.     This order warned [Appellant] that any issues that
    [Appellant] did not raise in a [s]tatement of [e]rrors filed by April
    27, 2021, would be deemed to have been waived. [Appellant] did
    not respond this order, apparently choosing to rely on his
    originally filed [s]tatement of [e]rrors.
    Id. at 2-3 (some footnotes omitted). The PCRA court filed its Rule 1925(a)
    opinion on May 27, 2021.
    On September 10, 2021, Appellant filed a handwritten, pro se brief with
    this Court. Before addressing the arguments raised therein, we note that:
    ____________________________________________
    1 We recognize that Appellant’s pro se notice of appeal did not state the date
    of the order being appealed as required by Pa.R.A.P. 904 (Contents of Notice
    of Appeal). Consequently, on July 6, 2021, this Court issued a rule to show
    cause why this appeal should not be quashed. Appellant failed to respond to
    the rule to show cause. On July 26, 2021, this Court entered an order notifying
    the parties that the issue raised in the rule to show cause would be referred
    to this panel. After further review of Appellant’s timely notice of appeal, we
    decline to quash. While Appellant omitted the date of the order from which
    he is appealing, he stated that he is appealing “from the judgment of Stephen
    O’Hanlon[’s] Finley letter that [Appellant’s PCRA] petition [is] without
    merit[.]” Notice of Appeal, 4/14/21. This language is sufficient to indicate
    that Appellant is appealing from the PCRA court’s March 5, 2021 order denying
    his PCRA petition and granting counsel’s petition to withdraw. Moreover, we
    have declared that “[a] failure to comply with [Rule] 904 will not result in a
    dismissal of the notice of appeal as long as the notice of appeal is timely filed.”
    Commonwealth v. Gumpert, 
    512 A.2d 699
    , 700-01 (declining to dismiss
    appeal where a mistake in the caption was an error of form and not
    substance). Accordingly, we do not quash Appellant’s appeal.
    -3-
    J-S04013-22
    “In reviewing the propriety of an order granting or denying PCRA
    relief, an appellate court is limited to ascertaining whether the
    record supports the determination of the PCRA court and whether
    the ruling is free of legal error.” Commonwealth v. Johnson, …
    
    966 A.2d 523
    , 532 ([Pa.] 2009). We pay great deference to the
    findings of the PCRA court, “but its legal determinations are
    subject to our plenary review.” 
    Id.
    Commonwealth v. Matias, 
    63 A.3d 807
    , 810 (Pa. Super. 2013).
    Next, we observe that Appellant’s brief wholly fails to comply with the
    Pennsylvania Rules of Appellate Procedure. Namely, Appellant omits several
    of the briefing sections required by Rules 2114 through 2119, including a
    “Statement of Questions Involved” section. See Pa.R.A.P. 2116. Moreover,
    his “Argument” section (labeled as “Discussion”) is not “divided into as many
    parts as there are questions to be argued,” and it does not contain any
    citations to, or discussion of, pertinent legal authority. See Pa.R.A.P. 2119(a).
    More problematically, Appellant’s two-page argument is for the most part
    incoherent.   Nevertheless, we will attempt to address the claims we can
    discern.
    First, Appellant seems to aver that the court should not have appointed
    Attorney O’Hanlon because Appellant indicated in his pro se PCRA petition that
    he wished to represent himself.      In rejecting this claim, the PCRA court
    explained:
    “[T]o invoke the right of self-representation, the request to
    proceed pro se must be made timely and not for purposes of delay
    and must be clear and unequivocal.”          Commonwealth v,
    Davido, 
    868 A.2d 431
    , 438 (Pa. 2005) ([finding the] defendant’s
    request to proceed pro se[,] only as an alternative if the court did
    not appoint [the] defendant new counsel[,] was a “bargaining
    device” and not an unequivocal demand for self-representation).
    -4-
    J-S04013-22
    “[T]he inquiry surrounding whether a request to proceed pro se is
    unequivocal is fact intensive and should be based on the totality
    of the circumstances surrounding the request.” Id. at 439. “[A]
    court only needs to conduct an on the record colloquy when there
    has been a ‘timely and unequivocal’ request to proceed pro se.”
    Id. at 438.
    The portion of the PCRA [p]etition to which [Appellant] refers
    reads[, verbatim]: “The Petitioner does not have a lawyer, and if
    the case should be that Counsel of Record continues appointed to
    this case, the Petitioner request that such be dismissed from the
    case, and that a Grazier[2] Hearing be scheduled for an On the
    Record in Propia Persona action. The Petitioner has an explicit
    right to Self-Representation whether or not this the Petitioner’s
    First Petition for Post Conviction Collateral Relief Guaranteed by
    the Sixth Amendment.” PCRA Petition[, 9/21/20,] at ¶ 14….
    [Appellant] specifically requested that he be allowed to represent
    himself only if “Counsel of Record continues appointed.” Id. The
    “Counsel of Record” at the time of this filing was Benjamin Cooper,
    Esquire.12 [Appellant’s] demand was not a clear and unequivocal
    request to proceed pro se, but was a request to proceed pro se as
    an alternative to [Attorney] Cooper’s representation. Because
    [Appellant] requested to proceed pro se only if [Attorney] Cooper
    represented him, [Attorney] O’Hanlon was properly appointed.
    12 [Appellant] previously requested [Attorney] Cooper be
    removed from his case on June 26, 2019, in a “Petition to
    Remove Counsel and Court Appoint New Counsel” in which
    he erroneously claimed that [Attorney] Cooper failed to file
    an appeal on his behalf and stated that “[Appellant will] feel
    better going forward with a different attorney on the behalf
    of his appeal.” Petition to Remove Counsel and Court
    Appoint New Counsel at p. 1. The [c]ourt denied this motion
    because [Attorney] Cooper did file an appeal on
    [Appellant’s] behalf and because the [c]ourt was without
    jurisdiction to consider the motion, as the case was pending
    on appeal in Superior Court. Trial Court Order[, 7/31/19].
    PCO at 6-7.
    ____________________________________________
    2   See Commonwealth v. Grazier, 
    713 A.2d 81
     (Pa. 1998).
    -5-
    J-S04013-22
    In challenging the court’s rationale in his brief to this Court, Appellant
    states only that he “never request[ed] that … [Attorney] Cooper be remove[d]
    an[d] new counsel be appointed.        [Appellant] said if [Attorney] Cooper
    remain[ed his counsel,] he would like [a] Grazier hearing. The [c]ourt never
    held that hearing….” Appellant’s Brief at 6.
    Appellant’s argument is meritless.       As the PCRA court observed,
    Appellant did request that Attorney Cooper be removed as his counsel in his
    pro se “Petition to Remove Counsel and Court Appoint New Counsel”.
    Accordingly, the court reasonably interpreted the statements in Appellant’s
    PCRA petition as indicating that he only wished to proceed pro se if Attorney
    Cooper was appointed as his PCRA counsel.        Because the court appointed
    Attorney O’Hanlon instead of Attorney Cooper, we discern no error in the
    court’s presuming that Appellant would not want to proceed pro se.
    Moreover, Attorney O’Hanlon ultimately moved for leave to withdraw.
    During the pendency of counsel’s motion, the PCRA court accepted and
    reviewed Appellant’s multiple, pro se filings in support of his petition. Thus,
    Appellant was effectively acting pro se, and he does not explain what he would
    have done differently in representing himself, had the court not appointed
    Attorney O’Hanlon at all. Consequently, no relief is due.
    Appellant next asserts that the PCRA court should have held an
    evidentiary hearing. This Court has explained that, “[w]hen reviewing the
    denial of a PCRA petition without an evidentiary hearing, we ‘determine
    whether the PCRA court erred in concluding that there were no genuine issues
    -6-
    J-S04013-22
    of material fact and in denying relief without an evidentiary hearing.’”
    Commonwealth v. Hart, 
    199 A.3d 475
    , 481 (Pa. Super.2018) (quoting
    Commonwealth v. Burton, 
    121 A.3d 1063
    , 1067 (Pa. Super. 2015)).
    “[W]hen there are no disputed factual issues, an evidentiary hearing is not
    required….” 
    Id.
     (quoting Commonwealth v. Morris, 
    684 A.2d 1027
    , 1042
    (Pa. 1996)). Here, Appellant does not explain what genuine issues of material
    fact necessitated an evidentiary hearing. He also does not state what evidence
    or witnesses he would have presented at a hearing, or what issues he would
    have argued.     Therefore, his assertion that a hearing was warranted is
    meritless.
    Finally, Appellant claims that Attorney O’Hanlon acted ineffectively. His
    entire argument in support of this claim consists of the following, verbatim
    statements:
    Mr O’hanlon was Ineffective Assistance of Counsel Base of Not
    raise Defendant issue, Not removing him self when he was inform
    This Petition is Pro-Se, failing to investigate The Defendant Claims,
    Counsel ignore The Evidence, Counsel ignore The Case law Attach
    To PCRA Petition, Counsel ignore Defendant request for Audio-
    Video Motion for Clearfication
    Appellant’s Brief at 7 (unnumbered). Appellant’s confusing and undeveloped
    argument clearly fails to meet the three-pronged test for proving counsel’s
    ineffectiveness. See Commonwealth v. Franklin, 
    990 A.2d 795
    , 797 (Pa.
    Super. 2010) (“It is well-established that counsel is presumed to have
    provided effective representation unless the PCRA petitioner pleads and
    proves all of the following: (1) the underlying legal claim is of arguable merit;
    -7-
    J-S04013-22
    (2) counsel’s action or inaction lacked any objectively reasonable basis
    designed to effectuate his client’s interest; and (3) prejudice, to the effect that
    there was a reasonable probability of a different outcome if not for counsel’s
    error.”) (citations omitted). Accordingly, this claim fails, as well.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/8/2022
    -8-
    

Document Info

Docket Number: 671 EDA 2021

Judges: Bender, P.J.E.

Filed Date: 2/8/2022

Precedential Status: Precedential

Modified Date: 2/8/2022