Com. v. Reeves, B. (memorandum)
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J-S36004-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BRIAN REEVES Appellant No. 155 EDA 2013 Appeal from the PCRA Order December 14, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1103451-2004 BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 09, 2014 Appellant, Brian Reeves, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying his first petition 1 We affirm and The relevant facts and procedural history of this appeal are as follows. On October 4, 2004, Appellant punched the victim in the face after a dispute over a traffic accident. the victim. When the victim tried to obtain the license plate Following a bench trial, the court convicted Appellant of ____________________________________________ 1 42 Pa.C.S.A. ยงยง 9541-9546. _____________________________ *Former Justice specially assigned to the Superior Court. J-S36004-14 aggravated assault and possessing an instrument of crime. On March 29, 2006, the court sentenced Appellant to an aggregate term of ten (10) to Court affirmed the judgment of sentence on December 21, 2007, and Appellant did not seek further review. On December 4, 2008, Appellant timely filed a pro se PCRA petition, alleging trial counsel failed to advise Appellant of his right to testify at trial. The court appointed counsel, who filed an amended petition on October 22, - letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On June 2, 2010, the court denied PCRA relief and permitted counsel to withdraw. Appellant timely filed a pro se notice of appeal on July 1, 2010. On June 8, 2011, this Court vacated the order denying PCRA relief and remanded the case with instructions for an evidentiary hearing to determine if trial counsel failed to advise Appellant of his right to testify at trial. Upon remand, the court appointed new counsel to represent Appellant. The court December 14, 2012, the court again denied PCRA relief. Appellant timely filed a notice of appeal on January 7, 2013. The court -2- J-S36004-14 Appellant on appeal. Attorney Scott entered his appearance with this Court on February 26, 2013. Nevertheless, Attorney Scott failed to file a brief on Appe determination of whether Attorney Scott had abandoned Appellant. This Court also ordered the PCRA court to take any further action required to Upon remand, the PCRA court determined Attorney Scott did not abandon Appellant. schedule. In response, this Court established a new briefing On September 10, 2013, Attorney Scott filed an application to withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In response, Appellant obtained Court on September 11, 2013. On September 16, 2013, Attorney Gelman filed an applica Anders brief. On September prejudice to his ability to re-raise the claim. This Court also vacated the briefing schedule and ordered Attorney Scott to file a new brief. Attorney Scott filed a Turner/Finley letter-brief on November 21, 2013. On December 6, 2013, this Court directed Attorney Scott to indicate whether he would proceed with the September 2013 Anders brief or the November 2013 Turner/Finley letter-brief. This Court also confirmed that -3- J-S36004-14 Court provided Attorney Gelman with a deadline of January 21, 2014, for the ney Scott notified this Court of his desire to proceed with the Turner/Finley letter-brief, which this Court accepted on January 29, 2014. That same day, this Court struck Anders brief and granted an extension to Attorney Gelman for the f request. representing a petitioner under the PCRA, Pennsylvania law requires mandates of Turner/Finley letter pursuant to the Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original). [C]ounsel court, or brief on appeal to this Court, detailing the nature the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel petition to withdraw and advise the petitioner of his right to proceed pro se or with new counsel. Id. will satisfy the Karanicolas, supra at 947. -4- J-S36004-14 Instantly, Attorney Scott filed a Turner/Finley letter-brief and motion to withdraw as counsel with this Court. Attorney Scott listed the issues Appellant wished to raise and explained why the issues merit no relief. letter-brief and motion to withdraw, as well as an explanation right to proceed pro se or with private counsel. Thus, Attorney Scott has substantially complied with the Turner/Finley requirements. we proceed to an independent evaluation of the Accordingly, record. See Commonwealth v. Widgins, 29 A.3d 816 (Pa.Super. 2011) (stating court must conduct independent review of record and agree with counsel that issues raised were meritless). we review this appeal on the basis of the issu brief: WAS TRIAL COUNSEL INEFFECTIVE BECAUSE HE FAILED TO INFORM APPELLANT OF HIS RIGHT TO TESTIFY, OF THE FACT THAT THE CHOICE AS TO WHETHER HE TESTIFIED OR NOT WAS HIS AND HIS ALONE TO MAKE, AND HE COULD ACCEPT OR REJECT COUNS ON THE SUBJECT? WAS THERE NO REASONABLE BASIS FOR TRIAL COUNSEL TO DEPRIVE APPELLANT OF PROPER ADVICE AS TO HIS RIGHT TO TESTIFY AND APPELLANT WAS PREJUDICED BECAUSE HE DID NOT RECEIVE PROPER ADVICE? CAN WAIVER BE PRESUMED FROM THIS SILENT RECORD AND IS PREJUDICE PRESUMED? -5- J-S36004-14 On appeal, Appellant acknowledges that he was in an altercation with the victim. Appellant contends, however, he could not have shot the victim, because he had surgery ten days before the incident, and he was barely able to move. Appellant avers the rendition of the facts he provided at the PCRA he would have testified at trial in his own defense, but trial counsel did not Appellant insists counsel had no advise him of his right to testify. reasonable basis for failing to advise him of his right to testify. Appellant Appellant did not take the stand to counter testimony. Appellant concludes trial counsel was ineffective for failing to advise him of his right to testify. We disagree. Our standard of review of the denial of a PCRA petition is limited to examining whether determination and the whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). -6- Traditionally, credibility issues are J-S36004-14 resolved by the trier of fact who had the opportunity to observe the Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 they are binding on this Court. Id. The law presumes counsel has rendered effective assistance. Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams, supra. issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguabl Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). Once this threshold -7- J-S36004-14 that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and couns assistance is deemed effective. Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted). Prejudice is established when [a defendant] demonstrates that chosen course of action had an adverse effect on the outcome of the proceedings. The defendant must show that there is a reasonable probability that, but for unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [Kimball, supra], we held defendant alleging prejudice must show that errors were so serious as to deprive the defendant Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (some internal citations and quotation marks omitted). made by the defendant after full consultation with counsel. Commonwealth v. Michaud, 70 A.3d 862 (Pa.Super. 2013). In order to sustain a claim that counsel was ineffective for failing to advise the appellant of his rights in this regard, the appellant must demonstrate either that counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf. Id. at 869 (quoting Commonwealth v. Nieves, 560 Pa. 529, 533, 746 A.2d 1102, 1104 (2000)). Instantly, Appellant testified at the October 4, 2012 evidentiary hearing. At that time, Appellant provided his version of the underlying facts, -8- J-S36004-14 explaining what he would have testified to at trial. Specifically, Appellant claimed to have been the passenger in a vehicle driven by Beverly Thompson. While driving down 66th Avenue, Appellant and Ms. Thompson heard a collision behind them. Ms. Thompson stopped, and Appellant exited their vehicle to investigate. At that point, Appellant exchanged words with the victim, who was involved in the collision. Appellant quickly reentered his vehicle, and Ms. Thompson drove off. Appellant did not hear any gunshots, and he did not know that a shooting had occurred until the police arrested him the next day. On cross-examination, Appellant admitted that trial counsel provided some consultation regarding his right to testify: [COMMONWEALTH]: All right. And did you talk with [trial counsel] about testifying? [APPELLANT]: Yes. [COMMONWEALTH]: him? All right. And what did you tell [APPELLANT]: I told him just said. I told him what I just testified to, and he told [COMMONWEALTH]: Okay. [APPELLANT]: * * [COMMONWEALTH]: -9- * J-S36004-14 [APPELLANT]: testify. [COMMONWEALTH]: testify? [APPELLANT]: (See N.T. PCRA Hearing, 10/4/12, at 54-56.)2 In light of the evidence presented at the evidentiary hearings, the Interestingly, [Appellant] did not unequivocally state that his attorney never broached the subject of his testifying in his own behalf. Rather, [Appellant] described a discussion in which he told his attorney that he wanted to testify and what he wanted to say. [Appellant] indicates that his attorney advised against it. Clearly, the subject was discussed and [Appellant] knew about his right to testify. Indeed [trial counsel] had represented [Appellant] several times in criminal matters before this case. Moreover, the decision for [Appellant] not to testify is not only supported by but also acquiesced [to] from the defense presented at trial. One witness testified that he was familiar with [Appellant] and [Appellant] was not present at the scene during the incident. The second witness placed [Appellant] in a wheelchair, wheelchairbound, during a funeral which took place approximately ten days prior to the underlying incident[,] offered to It would have been factually fatal for [trial counsel] to car and was involved in the altercation but that someone, ____________________________________________ 2 Trial counsel did not testify at the PCRA hearings. The parties stipulated trial counsel was suffering from kidney failure, and he did not recall representing Appellant. (See N.T. PCRA Hearing, 10/4/12, at 10.). - 10 - J-S36004-14 unbeknownst to him, shot the complainant. [Appellant] was not credible; he knew of his right to testify and chose to present a defense that he was neither at the scene of the incident nor capable of participating in such altercation since he had been in a wheelchair. * * * show what [Appellant] would have testified [to] before the court if called at trial failed to establish that [t]here is [any] reasonable probability that the result would have been different. Therefore, counsel would not have been s sole decision not to call [Appellant]. (See PCRA Court Opinion, filed February 28, 2013, at 3-4) (internal citations and quotation marks omitted). f trial counsel merited no relief on the ground asserted. See Chambers, supra; Pierce, supra; Michaud, supra. Accordingly, we affirm the order denying PCRA Order affirmed; petition to withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 - 11 -
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