Com. v. Warwick, J. (memorandum)

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J-S35020-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOHN J. WARWICK Appellant No. 2209 MDA 2013 Appeal from the PCRA Order of November 13, 2013 In the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0002394-2008 BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.* MEMORANDUM BY WECHT, J.: FILED JULY 01, 2014 John Warwick appeals from the November 13, 2013 order dismissing his petition for relief pursuant to the PostPa.C.S. §§ 9541, et seq. PCRA counsel for Warwick has filed with this Court Anders 1 We ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 See Anders v. California, 386 U.S. 738, 744-45 (1967); Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel apparently is operating under the mistaken belief that an Anders/Santiago brief is the proper mechanism to seek to withdraw as counsel on appeal from the denial of PCRA relief. In fact, the proper mechanism under such circumstances is the submission of a Turner/Finley brief. See Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213, 214-15 (Pa. Super. 1988). However, because an Anders brief provides greater relative protection to a criminal appellant, we may accept such in lieu of a Turner/Finley brief. Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011); (Footnote Continued Next Page) J-S35020-14 instant petition, the PCRA court summarized the factual and procedural history of this case as follows: On January 8, 2009, following a two[-]day jury trial over which [the PCRA court] presided, [Warwick] was convicted of driving under the influence of alcohol, offending 75 Pa.C.S. § 3802(a)(1). On June 4, 2009, the Honorable Michael Barrasse 1 Judge Barrasse sentenced [Warwick] to a prison term of twenty-one months to five years, plus an additional twelve to thirty-six months as a convicted probation violator. Thus, [Warwick] was sentenced in the aggregate to a total term of thirty-three months to eight years of complicated. 1 While this Court presided at trial, it was Judge Barrasse who conducted sentencing. On May 17, 2008, Officer Roland J. Alunni of the Olyphant in the 500 block of South Valley Avenue in Olyphant, PA. Officer Alunni observed a gray Dodge pickup truck following too closely behind a traveling fire truck. The truck was en route to an ongoing structure blaze that was also occurring in the 500 block of South Valley Avenue in Olyphant, PA. As Officer Alunni observed, the gray Dodge pickup truck then failed to yield the right of way to additional emergency vehicles that were also traveling to the fire. Finally, Officer Alunni observed the gray Dodge pickup truck come to a complete stop in the middle of the road, and he observed its driver arguing with emergency responders who were at the scene of the fire. As he approached the parked vehicle, Officer Alunni was able to detect an odor of alcohol emanating from within the gray Dodge pickup truck. (Footnote Continued) _______________________ Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). -2- J-S35020-14 Officer Alunni identified [Warwick] as the d[r]iver and sole occupant of the gray Dodge pickup truck. Suspecting [Warwick] was under the influence of alcohol, Officer Alunni asked him to exit the vehicle. Officer Alunni observed that [Warwick] was too impaired to stand or walk of his own strength and volition, so Officer Alunni physically held and guided [Warwick] into the rear compartment of his police cruiser. [Warwick] was transported to the Lackawanna County DUI Processing Center. There, [Warwick] refused field sobriety and blood alcohol testing. As [Warwick] was on probation when he was arrested on May 17, 2008, [Warwick] was remanded to the Lackawanna County Prison. On October 3, 2008, the Lackawanna County District Attorney charged [Warwick], by Information, with one count of driving under the influence of alcohol. Following his conviction and sentencing, [Warwick] was transferred to a state correctional facility. On June 19, 2009, [Warwick] filed a [pro se assistance of trial counsel. On September 15, 2009, [Warwick] misconduct. The Court appointed Attorney Kurt Lynott as PCRA counsel to [Warwick]. . . . -3 (citations modified). On petition. On November 13, 2013, the PCRA court filed an order dismissing On December 3, 2013, Warwick filed a timely notice of appeal with this Court. The PCRA court did not direct Warwick to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Accordingly, Warwick did not file a Rule 1925(b) statement. Warwick has raised two issues for our consideration: (1) whether trial and (2) whether trial counsel was ineffective for failing to claim prosecutorial -3- J-S35020-14 exculpatory evidence to Warwick. Anders Brief for Warwick at 4. Our determination of the PCRA court is supported by the evidence of record and ings will not be disturbed unless there is no support for those findings in the certified record. Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)). Because this is an appeal from a PCRA order, we will treat PCRA Anders brief as a Turner/Finley brief. See supra 1 n.1. We first consider whether PCRA counsel has complied with the technical requirements that our courts have established before appointed counsel may be released. Counsel petitioning to withdraw from PCRA representation must proceed under [Turner/Finley and] . . . must review the case zealously. Turner/Finley case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley, the court trial court or this Court must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are -4- J-S35020-14 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). We conclude that PCRA counsel has complied substantially with the technical requirements of Turner/Finley. In his brief, PCRA counsel sets forth the two claims that Warwick sought to raise before this Court. Anders Brief for Warwick at 4. PCRA counsel also provides a brief recitation of the procedural and factual background of the case. Id. at 5-6. After review, PCRA counsel could not glean anything from the record that he believed ] son as the allegedly undisclosed exculpatory evidence did not exist. Id. at 6. Thus, PCRA counsel concluded that Warwick was not eligible for relief. Id. at 7. This Court has received a copy of the March 10, 2014 letter that PCRA merit. Moreover, the letter advised Warwick that he was permitted to proceed pro se, that he was permitted to retain private counsel to pursue the appeal, and that the failure to raise any additional claims with this Court would result in a waiver. On March 17, 2014, Warwick filed a response indicating that he would like to proceed pro se. In addition to the claims enumerated by PCRA counsel, Warwick argued in his March 17, 2014 -5- J-S35020-14 response letter that an allegedly self-incriminating and prejudicial edited audio recording of himself was introduced to the jury in violation of Miranda v. Arizona, 384 U.S. 436 (1966). See rothonotary, 3/17/2014, at 2 (unnumbered). PCRA counsel did not file an application to withdraw along with his brief. Pursuant to a March 18, 2014 order, this Court directed PCRA counsel to file a petition to withdraw and to serve Warwick with a copy of the same. On March 21, 2014, PCRA counsel submitted a copy of his petition to withdraw to this Court and to Warwick. The petition was filed of record on March 31, 2014. Thus, we conclude that PCRA counsel has complied with our March 18, 2014 order. Based upon the foregoing discussion, we conclude that PCRA counsel has complied substantially with the Turner/Finley requirements. See Doty petition to withdraw, we must conduct an independent review of the entire record. In his brief before this Court, PCRA counsel concluded that both of eligible for relief for IAC, Warwick must prove by a preponderance of the evidence - determining process that no reasonable adjudication of guilt or innocence We begin with the presumption that counsel rendered effective assistance. Commonwealth v. Basemore, 744 A.2d 717, 728 n.10 (Pa. 2000). To obtain relief on a claim of ineffective -6- J-S35020-14 assistance of counsel, a petitioner must rebut that presumption that such performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-91 (1984). In our Commonwealth, we have rearticulated the Strickland performance and prejudice inquiry as a three-prong test. Specifically, a petitioner must show: (1) the underlying claim is that there is a reasonable probability that the result of the proceeding would have been different absent such error. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citations any of the Pierce prongs, the Court need not address the remaining prongs Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the [Pierce] test, the court may Commonwealth v. Lambert, 797 A.2d 232, Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citing Commonwealth v. Parker, 469 A.2d 582, 584 (Pa. 1983)). Warwick first argues that trial counsel was ineffective for failing to call attendant to an IAC claim, based upon an alleged failure to call a witness, are well established: -7- J-S35020-14 When raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies the performance and prejudice requirements of the Strickland test by establishing that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial. Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009); Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008). To demonstrate Strickland prejudice, a would have been beneficial under the circumstances of the Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008). Thus, counsel will not be found ineffective for failing to call a witne testimony would have been helpful to the defense. Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996). per se ineffective assistance of counsel for such decision usually involves matters of trial Id. Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations modified). Instantly, Warwick has identified a witness that was available to testify at his trial, whose existence was known to trial counsel. Anders Brief for Warwick at 5-6. defense. Furthermore, the witness was willing to testify for the See However, trial counsel testified that there was little to be gained from this testimony, because the witness before operating a motor vehicle. -45. would have corroborated See Notes of Testimony Specifically, W -8- the J-S35020-14 testified that Warwick had only consumed a few alcoholic beverages on the night in question, and was not especially intoxicated. See to Prothonotary at 5 (unnumbered). Furthermore, trial counsel testified that the -45. Based upon the facts of record and the testimony from trial counsel, there is no indication that the witness to the defense. See Auker, 681 A.2d at 1319. Rather, the testimony would Accordingly, Warwick has not demonstrated the requisite Strickland prejudice. See Gibson is without merit. claim prosecutorial misconduct 2 provide exculpatory Anders Brief for Warwick at 4. We disagree. Anders Brief for Warwick at 5. ____________________________________________ 2 The PCRA court analyzed this claim as raising a prosecutorial misconduct issue. See P.C.O. at 7-9. However, because Warwick frames this claim as an IAC issue, we analyze it as such. -9- J-S35020-14 Testimony at the PCRA hearing indicates that this putative video does not exist. Warwick testified that he is unsure as to whether the booking center trial counsel testified that he cannot recall Warwick requesting the particular Id. at 45. Furthermore, the prosecuting attorney testified that he was not aware of the existence of any such video. Id. at 65. Although the prosecuting attorney further testified that while the processing room at the booking center is under audio and video surveillance, id. at 66, there is no evidence of record confirming that the hallway in question is similarly monitored. There is nothing in the evidence of record to establish that the video sought by Warwick actually exists. Consequently, trial counsel cannot be ineffective for failing to pursue a meritless claim. See Pursell, 724 A.2d at 304 (citing Parker, 469 A.2d at 584). Thus, In addition to the claims enumerated by PCRA counsel, Warwick argues in his March 17, 2014 letter to the Prothonotary that an allegedly self-incriminating and prejudicial edited audio recording of himself was introduced to the jury in violation of Miranda v. Arizona, 384 U.S. 436 (1966). See red). Because defense counsel introduced this recording to the jury, we assume that Warwick refers to the IAC claim first raised in his PCRA petition. - 10 - See J-S35020-14 e of counsel . . . [in introducing a self-incriminating and prejudicial edited audio/video recording of Warwick] undermin[ed] the truth determining process [so] that no reliable of adjudication of guilt or Id. We note that Warwick does not cite the Pierce standard for IAC claims, nor does he provide discrete arguments as to each prong of the Pierce test. Rather, his letter to the error prejudiced him before the jury. Such undeveloped claims, based upon proof. Warwick must set forth and individually discuss, in substance, each prong of the Pierce test. Commonwealth v. Steele, 961 A.2d 786, 797 Id. Because Warwick has failed to set forth and individually discuss each prong of the Pierce test, we conclude that this issue is waived for lack of development. Id. Furthermore, our independent review of the certified record has uncovered to withdraw, and we affirm the order of the PCRA court. - 11 - J-S35020-14 Application to withdraw granted. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/1/2014 - 12 -

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