J-S18039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD BEST,
Appellant
No. 2532 EDA 2013
Appeal from the PCRA Order August 16, 2013
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001207-2008
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.:
FILED MAY 16, 2014
Appellant, Ronald Best, appeals pro se following the dismissal of his
first petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
On November 18, 2007, Appellant and his cohorts accosted Jocelyn
Smith in her family home at gunpoint, locked her in the basement with her
two-year-old son, bound and gagged her husband, and ransacked their
home. They stole money and personal property, repeatedly threatened to
kill the family, and fled in Smith’s vehicle. Following a five-day jury trial, the
jury found Appellant guilty of two counts of robbery and one count each of
burglary, possessing an instrument of crime (PIC), and criminal conspiracy.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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After a bench trial on November 10, 2009, the trial court found Appellant
guilty of one count of possession of a firearm by a person prohibited from
possessing a firearm. The same day, the court sentenced Appellant to an
aggregate term of not less than seventeen and one half nor more than thirty
five years’ imprisonment.
On direct appeal, this Court affirmed the
judgment of sentence, and our Supreme Court denied allowance of appeal.
(See Commonwealth v. Best, 24 A.3d 444 (Pa. Super. 2011) (unpublished
memorandum), appeal denied, 25 A.3d 327 (Pa. 2011)).
On September 2, 2011, Appellant timely filed the underlying PCRA
petition.
The court appointed counsel, who filed a motion 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), on
May 28, 2013. On June 14, 2013, the court entered notice of its intent to
dismiss Appellant’s petition without a hearing pursuant to Rule 907.
Pa.R.Crim.P. 907(1).
See
On August 16, 2013, the court dismissed the PCRA
petition and granted PCRA counsel’s motion to withdraw. Appellant timely
appealed pro se.1
Appellant raises five questions for our review:
1)
Whether there were conversations held at side bar
involving substantive legal matters that should have been
____________________________________________
1
The PCRA court did not order Appellant to file a Rule 1925(b) statement,
but entered a Rule 1925(a) opinion on September 16, 2013. See Pa.R.A.P.
1925.
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recorded, thereby making trial counsel ineffective for not
objecting[?]
2)
Whether an unauthorized arrest as well as an illegal search
warrant without probable cause should result in all evidence
seized to be suppressed[?]
3)
Whether the merger doctrine, which holds that the same
act may never eventuate in more than one punishment, should
be applied[?]
4)
Whether the following is the procedure for withdrawal of
counsel on collateral appeal: The filing of a no-merit letter by
counsel detailing the nature and extent of counsel’s review and
listing each issue [A]ppellant wished to raise, with counsel’s
explanation why the issues are meritless, and an independent
review by the court were in error[?]
5)
Whether the [A]ppellant should be able to review issues
for a second PCRA based on [?] [sic], just received his
transcripts on 9/25/13 after his notice of appeal was put in on
9/4/13[?]
(Appellant’s Brief, at 6).
Our standard of review is well-settled:
When reviewing the propriety of an order granting or
denying PCRA relief, this Court is limited to determining whether
the evidence of record supports the determination of the PCRA
court and whether the ruling is free of legal error. Great
deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the
certified record.
Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal
denied, 67 A.3d 796 (Pa. 2013) (citations omitted).
In his first issue, Appellant argues that his “counsels were all
ineffective in failing to object or raise in any appeal, and on PCRA review the
court’s errors holding many discussions off the record on side bars in trial.”
(Appellant’s Brief, at 11). Specifically, he claims that “there were about 22
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side bars off the record that had to do with substantive legal matters that
should have been recorded” and that counsel’s “failure to object to these offthe-record side bars cannot be explained and has no rational or strategic
basis that could possibly help [A]ppellant.”
(Id. at 13, 14). This issue is
waived.
Here, in his pro se PCRA petition, Appellant alleged error in the form
of “ineffective [assistance] of counsel not to object to evidence that should
have been suppressed due to an unlawful arrest that this court ruled illegal.”
(PCRA Petition, 9/02/11, at 3).
He further claimed, in an attached
memorandum of law, a “[s]idebar [m]isunderstanding” for which “[i]f
transcripts have been lost or not made, petitioner believes this should be
grounds for a new trial.” (PCRA Memorandum, 9/02/11, at 8, 9). Appellant
did not preserve a claim of trial counsel ineffectiveness in his petition for
failure to object to nontranscription of sidebar conferences. Nor, after notice
by the PCRA court of its intent to dismiss the petition, did Appellant
supplement his petition with this claim. Thus, it is waived. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”); see also Commonwealth v.
Wallace, 724 A.2d 916, 921 n.5 (Pa. 1999) (holding that appellate court will
not consider issue unless it is presented in properly filed post-conviction
petition). Moreover, it would lack merit.
In evaluating claims of ineffective assistance of counsel,
we presume that counsel is effective.
To overcome the
presumption of effectiveness, Appellant must establish three
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factors: first that the underlying claim has arguable merit;
second, that counsel had no reasonable basis for his action or
inaction; and third, that Appellant was prejudiced. Counsel’s
assistance is deemed constitutionally effective once this Court
determines that the defendant has not established any one of
the prongs of the ineffectiveness test.
Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citations,
quotation marks, and emphasis omitted).
It is well-settled that a bald assertion of prejudice is insufficient to
sustain an argument that the court erred in failing to provide a defendant
with transcripts, and insufficient to raise any inference of prejudice from
counsel’s failure to pursue that issue. See Commonwealth v. Schwenk,
777 A.2d 1149, 1157 (Pa. Super. 2001), appeal denied, 788 A.2d 375 (Pa.
2001) (citing Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998)); cf.
Commonwealth v. Brown, 436 A.2d 165, 166 (Pa. 1981) (awarding new
trial where appellant provided proof of “several specific remarks” made by
prosecutor in closing argument which were prejudicial and had not been
transcribed).
Here, Appellant merely claims that “[t]he prejudice prong is met
because [he] was denied an opportunity to provide the off-the-record
agreements involving legal matters that could prove his claims for relief.”
(Appellant’s Brief, at 14). See Commonwealth v. Causey, 833 A.2d 165,
171 n.3 (Pa. Super. 2003), appeal denied, 848 A.2d 927 (Pa. 2004) (holding
that, where an appellant “makes a bald, unsupported claim of unspecified
prejudice . . . we decline to become appellant’s counsel[.]”). Appellant has
failed to overcome the presumption that counsel was constitutionally
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effective, and thus, his first issue would not merit relief. See Rolan, supra
at 406.
Second, Appellant claims that “all evidence should be suppressed”
because of “an unauthorized arrest as well as a search warrant without
probable cause[.]” (Appellant’s Brief, at 14-15). We disagree.
To be eligible for relief under the PCRA, the petitioner must
plead and prove by a preponderance of the evidence that the
conviction or sentence in question arose from one or more of the
errors enunciated by Section 9543(a)(2), and that the issues
raised have not been previously litigated or waived.
42
Pa.C.S.A. § 9543(a)(3). An issue is previously litigated if “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 . . . it has been raised and decided in a proceeding collaterally
attacking the conviction or sentence.”
42 Pa.C.S.A.
§ 9544(a)(2), (3).
Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa. Super. 2011), appeal
denied, 42 A.3d 1059 (Pa. 2012).
Here, our review indicates that Appellant previously challenged the
trial court’s denial of his suppression motion on direct appeal.
(See
Commonwealth v. Best, No. 144 EDA 2010, unpublished memorandum at
*6 (Pa. Super. filed Feb. 4, 2011)).
Therefore, Appellant had the
opportunity to litigate any claims related to the trial court’s denial of his
suppression motion on direct appeal, and any new arguments related to
suppression should have been previously litigated.
See 42 Pa.C.S.A. §
9543(a)(3); see also Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.
Super. 2000) (“A PCRA [p]etitioner cannot obtain PCRA review of previously
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litigated claims decided adversely to him in his direct appeal simply by
presenting those claims again in a PCRA [p]etition and setting forth new
theories of relief in support thereof.”) (citation omitted). This claim does not
merit relief.2
Third, Appellant argues that the trial court erred in declining to apply
the merger doctrine to his charges and claims that “the same act may never
eventuate in more than one punishment[.]” (Appellant’s Brief, at 20). He
claims that “there was only one injury to the [C]ommonwealth,” and thus,
the imposition of consecutive sentences for conspiracy, robbery, and
burglary resulted in an “illegal” sentence. (Id. at 22-23).3 We disagree.
On appeal from the denial of PCRA relief, our standard of
review calls for us to determine whether the ruling of the PCRA
court is supported by the record and free of legal error.
Whether Appellant’s convictions merge for sentencing is
a question implicating the legality of Appellant’s sentence.
Consequently, our standard of review is de novo and the
scope of our review is plenary. The best evidence of
legislative intent is the words used by the General
Assembly. Further, this Court must, whenever possible,
give effect to all provisions of a statute, 1 Pa.C.S. §
1921(a), and unless a phrase has a technical, peculiar, or
otherwise defined meaning, that phrase must be construed
____________________________________________
Moreover, we would observe that this challenge to the suppression court’s
findings fails to state a cognizable claim under the PCRA. See 42 Pa.C.S.A.
§ 9543(a)(2).
2
3
See 42 Pa.C.S.A. § 9543(a)(2)(vii) (holding eligibility for relief under PCRA
includes claims of “imposition of a sentence greater than the lawful
maximum”).
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according to its common and approved usage. 1 Pa.C.S. §
1903(a). Of course, this Court presumes that the General
Assembly does not intend absurd or unreasonable results
when it enacts a statute. 1 Pa.C.S. § 1922(1).
Section 9765 of the Judicial Code provides that:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765.
Our Supreme Court . . . concluded that:
A plain language interpretation of Section 9765 reveals the
General Assembly’s intent to preclude the courts of this
Commonwealth from merging sentences for two offenses
that are based on a single criminal act unless all of the
statutory elements of one of the offenses are included in
the statutory elements of the other.
. . . [Where t]here is no dispute that the crimes arose out
of the same set of facts, constituting a single criminal act[,] . . .
the issue for review is whether all of the statutory elements of
one of the offenses are included in the statutory elements of the
other. . . .
Our merger jurisprudence is rooted in the protection
against double jeopardy provided by the United States and the
Pennsylvania Constitutions. [See] U.S. Const. amend. V (“nor
shall any person be subject for the same offence to be twice put
in jeopardy of life or limb”); Pennsylvania Const. Art. 1, § 10
(“No person shall, for the same offense, be twice put in jeopardy
of life or limb”).
However, our Supreme Court has long
recognized that “the same facts may support multiple
convictions and separate sentences for each conviction except in
cases where the offenses are greater and lesser included
offenses.” Commonwealth v. Anderson, 538 Pa. 574, 650
A.2d 20, 22 (Pa. 1994). The Court in Anderson noted its
continuing concern to avoid giving criminals a “volume discount”
on crime.
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Commonwealth v. Calhoun, 52 A.3d 281, 284-85 (Pa. Super. 2012),
appeal denied, 67 A.3d 793 (Pa. 2013) (footnotes and some case citations
omitted).
Here, Appellant challenges his consecutive sentences for robbery,
burglary, and conspiracy. (See Appellant’s Brief, at 22). However, pursuant
to 18 Pa.C.S.A. § 3502(d), multiple convictions, “[a] person may not be
sentenced both for burglary and for the offense which it was his intent to
commit after the burglarious entry or for an attempt to commit that offense,
unless the additional offense constitutes a felony of the first or
second degree.”
18 Pa.C.S.A. § 3502(d) (emphasis added).
It is well-
settled that “robbery does not merge with burglary because robbery is a
felony of the first degree.” Commonwealth v. Danzy, 340 A.2d 494, 496
(Pa. Super. 1975). Finally, “it is longstanding law in Pennsylvania that the
crime of criminal conspiracy does not merge with the completed offense
which was the object of the conspiracy.”
Commonwealth v. Collins, 70
A.3d 1245, 1250 (Pa. Super. 2013), appeal denied, 80 A.3d 774 (Pa. 2013)
(citation and quotation marks omitted).
Thus, as a matter of law, the
charges of robbery, burglary, and conspiracy do not merge. See Calhoun,
supra at 284-85.
Accordingly, Appellant’s claim that his charges should
have merged lacks merit.4
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Moreover, we observe that “[l]ong[-]standing precedent of this Court
recognizes that 42 Pa.C.S.A. section 9721 affords the sentencing court
4
(Footnote Continued Next Page)
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Finally, Appellant has apparently combined his fourth and fifth issues
into a single argument section, claiming that “PCRA counsel and the [PCRA
court] neglected to read/review the record of testimony in a suppression
hearing and trial transcripts.” (Appellant’s Brief, at 23; see id. at 6, 23-32).
Essentially, he challenges the PCRA court’s grant of PCRA counsel’s petition
to withdraw, and argues that PCRA counsel was ineffective “in failing to
read/review the record to effectuate [his] best interests.” (Id. at 23). This
issue is waived.
“[I]ssues of PCRA counsel effectiveness must be raised in a serial
PCRA petition or in response to a notice of dismissal before the PCRA court.”
Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012), appeal
denied, 54 A.3d 347 (Pa. 2012); see also Commonwealth v. Rigg, 84
A.3d 1080, 1085 (Pa. Super. 2014) (“Since [a]ppellant did not seek leave to
amend his petition or otherwise preserve his trial counsel and PCRA counsel
ineffectiveness claims, he waived the issues he raised for the first time [on
appeal].”).
(Footnote Continued)
_______________________
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already
imposed.” Commonwealth v. Gonzalez-DeJusus, 994 A.2d 595, 598 (Pa.
Super. 2010) (citation omitted). “Requests for relief with respect to the
discretionary aspects of sentence are not cognizable in PCRA proceedings.”
Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007)
(citation omitted).
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Here, the PCRA court filed its Rule 907 dismissal notice on June 14,
2013, advising Appellant that his response was “due within twenty calendar
days of the above date.” (Rule 907 Notice, 6/14/13, at 1). Thereafter, on
August 16, 2013, having received no response from Appellant, the PCRA
court dismissed his petition.
(See Order, 8/16/13).
On September 10,
2013, Appellant filed a pro se notice of appeal in which he acknowledged
that counsel had informed him that he “would have an opportunity to
respond to the 907 notice when given,” but failed to identify any timely
response on his part.
(Notice of Appeal, 9/10/13, at 1).
Accordingly,
Appellant failed to preserve a claim of PCRA counsel ineffectiveness by either
filing a serial PCRA petition or timely responding to the Rule 907 notice. See
Rigg, supra at 1085; Ford, supra at 1200.
Thus, this claim has been
waived, and moreover, it would not merit relief.
Counsel petitioning to withdraw from PCRA representation
must proceed . . . under [Turner, supra and Finley, supra
and] . . . must review the case zealously. Turner/Finley
counsel must then submit a “no-merit” letter to the [PCRA] court
. . . detailing the nature and extent of counsel’s diligent review
of the case, listing the issues which petitioner wants to have
reviewed, explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
*
*
*
[W]here counsel submits a petition and no-merit letter that . . .
satisfy the technical demands of Turner/Finley, the court . . .
must then conduct its own review of the merits of the case. If
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the court agrees with counsel that the claims are without merit,
the court will permit counsel to withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations
omitted).
Here, counsel satisfied all of the above procedural requirements.
(See Letter, 5/28/13, at 1 (stating that counsel “contacted the petitioner
and . . . reviewed all of the court documents relevant to this case”); see
also id. at 10 (averring that Appellant was served with letter and advised of
his rights)).
Thus, counsel’s petition to withdraw is Turner/Finley
compliant. See Doty, supra at 454. On independent review, we agree with
PCRA counsel and the PCRA court that Appellant has raised “no other nonfrivolous issue to address.”
(PCRA Court Opinion, 9/16/13, at 4).
Appellant’s unsubstantiated claim that PCRA counsel and the PCRA court
failed to review his transcripts is not supported by the record, and would not
merit relief. See Rachak, supra at 391.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2014
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