Com. v. Pennock, M. (memorandum)
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J-S76036-12
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
MARC A. PENNOCK,
Appellant
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IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 1607 EDA 2012
Appeal from the Order Entered August 30, 2010,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0408401-2006.
BEFORE: FORD ELLIOTT, P.J.E., BENDER and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.:
FILED FEBRUARY 07, 2014
This matter is again before this Court following remand.
Appellant,
Marc A. Pennock, appeals nunc pro tunc from the order entered on
August 30, 2010, dismissing his petition for relief filed pursuant to the Post
-9546.
After careful
review, we affirm.
The background of this matter was previously set forth by a panel of
this Court as follows:
On January 5, 2006 at approximately 9:00 p.m., Allen
Phillips was driving a cab and picked up Pennock and Marcus
Dicks. The two men entered the cab with shopping bags. Dicks
told Phillips to take them to Greene and Duval Streets in
Philadelphia.
When Phillips arrived at the location, Dicks
instructed Phillips to drive behind a high-rise apartment building
the building.
When he turned to the passengers to collect the
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cab fare, he saw that Dicks had a gun pointed a foot away from
his head. Dicks ordered Phillips to turn over all of his money and
Phillips gave him $60.00.
While Dicks was yelling at Phillips, Pennock got out of the
ordered Phillips out of the car. Phillips got out of the car and
told Pennock to look up at the windows because people were
watching them from above. Phillips then put his hand in his
jacket and pretended to be retrieving a weapon.
Pennock
started to run away. Dicks started to shoot towards Phillips, who
hid behind a car. Dicks fired four shots and ran away. Once
both assailants had left the scene, Phillips returned to his cab
and called his dispatcher, who then called the police.
Officer Jason Branyan received a report of a robbery in the
area of his patrol. He saw two males, Pennock and Dicks, who
matched the radio description walking about three blocks from
the scene of the robbery. As Officer Branyan approached the
men he saw Pennock go to a tree and place a dark-colored
object next to the tree and then continue walking with Dicks.
Officer Branyan asked the two men to stop. He patted down
Dicks and found $60.00. A back-up officer went to the tree
where Pennock left the dark object and retrieved a gun. A knife
identified Pennock and Dicks as the men who robbed him.
On January 5, 2006 Pennock was charged with attempted
murder, criminal conspiracy, aggravated assault, robbery,
violations of the Uniform Firearms Act (VUFA) and related
charges. At the preliminary hearing, the Philadelphia Municipal
Court discharged the attempted murder charge for lack of
evidence. The Commonwealth held all the charges, including
attempted murder, for trial.
On February 1, 2007, Pennock moved to suppress the
identification and the physical evidence, which was denied by the
trial court. Before proceeding to a non-jury trial, Penno
attorney, in an oral motion immediately before trial, moved to
quash the attempted murder bill and the trial court denied the
motion. Pennock was acquitted of terroristic threats and one
VUFA charge and was convicted on all other charges. On April 2,
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the aggravated assault charge and a concurrent 9 to 18 years on
the criminal conspiracy charge. The trial court imposed no
further penalty for the remaining charges.
Pennock timely
appealed.
Commonwealth v. Pennock, 953 A.2d 836, 1119 EDA 2007 (Pa. Super.
2008) (unpublished memorandum). On March 31, 2008, this Court vacated
judgment of sentence.
Id.
On September 17, 2008, the Pennsylvania
Commonwealth v. Pennock, 960 A.2d 839 (Pa. 2008).
On June 9, 2009, Appellant filed a pro se PCRA petition, and counsel
was appointed.
Counsel filed a Turner/Finley1 letter on December 18,
the PCRA court notified Appellant of its intent to dismiss the PCRA petition
within twenty days pursuant to Pa.R.Crim.P. 907. Nine days later, Appellant
fi
Pa.R.Crim.P. 907 notice.
On January 20, 2011, Appellant filed a pro se
petition with the PCRA court, and on April 11, 2012, the PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss that petition as untimely.
On
April 26, 2012, Appellant filed a response to the Pa.R.Crim.P. 907 notice.
Response, 4/26/12, at 3-5.
Therein, Appellant argued that this second
1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements necessary for counsel to withdraw in
collateral proceedings under the PCRA).
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dismissing the first PCRA petition. Id. On May 16, 2012, the PCRA court
granted Appellant leave to appeal nunc pro tunc from the order denying his
first PCRA petition, and on May 31, 2012, Appellant filed his appeal.
In a memorandum filed on March 26, 2013, we concluded that there
was no indication in the record that Appellant was afforded notice that his
counseled PCRA petition was denied or that counsel had been permitted to
withdraw.
Commonwealth v. Pennock, 69 A.3d 1301, 1607 EDA 2012
(Pa. Super. 2013) (unpublished memorandum).
Additionally, we were
received and whether counsel was permitted to withdraw or should have
been permitted to withdraw. Id. Accordingly, we remanded this case to the
PCRA Court.
Id.
In that memorandum, we directed the PCRA court to
appoint counsel and grant Appellant a counseled nunc pro tunc appeal from
the denial of PCRA relief. Id.
On remand, the PCRA court appointed counsel, and counsel filed a
brief on behalf of Appellant on September 25, 2013.2
2
In this appeal,
Despite numerous motions for extensions of time and numerous orders
granting those motions thereby delaying the disposition of this appeal, the
matter.
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Conviction Relief Act petition without an evidentiary hearing
wherein the issue raised was that he was denied effective
assistance of counsel as trial counsel failed to engage in an
adequate and timely consultation with him before the filing
deadline, of his right to file a motion for reconsideration of
sentence?
ef at 2 (full capitalization omitted).
Our standard of review for an order denying PCRA relief is whether the
determination is free of legal error.
Commonwealth v. Berry, 877 A.2d
479, 482 (
unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Moreover, it is well established that counsel cannot be deemed ineffective for
failing to raise a meritless claim. Commonwealth v. Lawrence, 960 A.2d
473, 478 (Pa. Super. 2008) (citing Commonwealth v. Daniels, 947 A.2d
795, 798 (Pa. Super. 2008)).
trial
counsel is well settled. Appellant must prove that: (1) the underlying claim
and
(3)
the
ineffecti
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).
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Prejudice
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error, the outcome of the proceedings would have been different.
Id.
C
demonstrate otherwise. Commonwealth v. Williams, 846 A.2d 105, 111
(Pa. 2004). If the petitioner fails to satisfy any prong of the ineffectiveness
inquiry, his claim will be rejected.
Commonwealth v. Sattazahn, 952
A.2d 640, 652-653 (Pa. 2008) (citations omitted).
Moreover, it is well
settled that an appellate court is bound by the credibility determinations of
the PCRA court where those determinations are supported by the record.
Commonwealth v. White, 734 A.2d 374 (Pa. 1999).
Additionally, we point out that the right to an evidentiary hearing on a
PCRA petition is not absolute. Commonwealth v. Wah, 42 A.3d 335, 338
Id.
Here, Appellant argues that he had a viable challenge to the
discretionary aspects of his sentence but that trial counsel failed to file a
post-
-13. Appellant correctly points
out that, if a petitioner fails to present a challenge to the discretionary
aspects of his sentence in a timely-filed post sentence motion, that issue is
waived on appeal. Id. at 11 (citing Commonwealth v. McAfee, 849 A.2d
270 (Pa. Super. 2004)).
However, Appellant goes on to assert that this
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default may, pursuant to Commonwealth v. Lantzy, 736 A.2d 564 (Pa.
1999), amount to ineffectiveness per se.3
disagree.
In Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007), our
Supreme Court rejected a similar argument.
In Reaves, the appellant
argued that counsel was ineffective per se for failing to object when the trial
court failed to state on the record its reasons for the sentence imposed
following the revocation of probation, thus, waiving that issue on appeal.
Id. at 1122.
The Supreme Court explained the concept of per se, or
presumed, prejudice as follows:
[T]he defining feature of all of these cases is that the
acts or omissions of counsel were of the type that
are virtually certain to undermine confidence that the
defendant received a fair trial or that the outcome of
the proceedings is reliable, primarily because they
remove any pretension that the accused had
time frame. In this regard, it is worth noting that
the portion of the [decision in United States v.
Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d
657 (1984)] explaining the theory underlying the
concept of presumptive prejudice begins by
observing that effective assistance is constitutionally
guaranteed not for its own sake, but because of its
effect u
trial.
3
Lantzy held that there are instances where ineffectiveness will be
presumed without the necessity to show actual prejudice pursuant to
Strickland v. Washington, 466 U.S. 668 (1984). Lantzy, 736 A.2d
at 572.
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Id. at 1128 (quoting Commonwealth v. Cousin, 888 A.2d 710, 718 (Pa.
2005)). The Court in Reaves went on to explain:
This Court has extended the presumption in Pennsylvania to
se ensured the total failure of an
appeal requested by the client. [Cousin] at 718 n. 12 (citing
Lantzy, 736 A.2d at 571 (counsel failed to file requested direct
appeal); [Commonwealth v. Halley, 870 A.2d 795, 801 (Pa.
2005)] (counsel failed to file statement of matters complained of
Accord [Commonwealth v. Liebel, 573 Pa. 375,
825 A.2d 630, 635 (2003)] (counsel failed to file requested
petition for allowance of appeal, thereby depriving client of right
to seek discretionary review). In Halley, this Court stressed the
fundamental difference between a lapse by counsel which leads
to no review at all and one which merely narrows the review
tween failures that
completely foreclose appellate review, and those which may
result in narrowing its ambit, justifies application of the
870 A.2d at 801.
Reaves, 923 A.2d at 1128.
Here, counsel did not file a motion for reconsideration.
While this
precluded challenging the discretionary aspects of his sentence and
narrowed the ambit of issues Appellant could challenge on appeal, Appellant
was not completely denied the assistance of counsel.
at 1128.
Reaves, 923 A.2d
Therefore, we conclude that an analysis under a presumed
pursuant to the actual prejudice standard set forth in Pierce above, i.e.,
there is a reasonable probabi
the proceedings would have been different.
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In the argument portion of his brief, Appellant argues cursorily that
the sentencing court did not follow the Pennsylvania Sentencing Guidelines.
ief at 12. However, Appellant never claims that the result of
the proceeding would have been any different if a post-sentence motion had
been filed. Thus, because Appellant has failed to assert, much less prove,
that the result of the proceedings would have been different if a postsentence motion had been filed, we conclude that he has failed to establish
prejudice.
Pierce, 786 A.2d at 213.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2014
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Accordingly, we affirm the order
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