Com. v. Harinarain, C (memorandum)

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J-S28040-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CAMERON ARTHUR HARINARAIN, Appellant No. 3062 EDA 2013 Appeal from the PCRA Order October 17, 2013 in the Court of Common Pleas of Pike County Criminal Division at No.: CP-52-CR-0000297-2007 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED JUNE 04, 2014 Appellant, Cameron Arthur Harinarain, appeals pro se from the denial of his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, after a hearing. We affirm. On August 23, 2007, Appellant and two other individuals broke into the home of Barry Rose, a retired corrections officer, where they shot and killed him. The purpose of the break-in was to steal handguns owned by Mr. Rose. Counsel conducted voir dire and the court empaneled the jury on Friday, March 6, 2009. On Monday, March 9, 2009, immediately before - ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S28040-14 Batson1 challenge alleging racial discrimination by the Commonwealth during jury selection. (See N.T. Trial, 3/09/09, at 11- constituted a prima facie showing of discrimination. (Id. at 11; see id. at 12). The court disagreed and denied the motion. (See id. at 12-13). On March 18, 2009, the jury convicted Appellant of second degree murder, two counts each of robbery and conspiracy, and one count each of burglary and firearms not to be carried without a license.2 On March 19, 2009, the trial court sentenced Appellant to an aggregate term of mandatory life in prison plus a consecutive term of not less than fourteen nor more than thirty-four years. -sentence motions and this Court affirmed his judgment Commonwealth v. of sentence 24 Harinarain, (unpublished memorandum)). on February A.3d 443 2, (Pa. 2011. Super. (See 2011) In relevant part, this Court concluded that Batson challenge was waived for couns during voir dire. (See Commonwealth v. Harinarain, No. 1422 EDA 2009, unpublished memorandum, at *10-11, (Pa. Super. Feb. 2, 2011)). ____________________________________________ 1 Batson v. Kentucky, 476 U.S. 79, 89 (1986). 2 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i) and (ii), 903(a)(1) and (c), 3502(a), and 6106(a)(1), respectively. -2- J-S28040-14 September 14, 2011. (See Commonwealth v. Harinarain, 29 A.3d 371 (Pa. 2011)). On June 4, 2012, Appellant filed a timely pro se PCRA petition. Appointed counsel filed a Turner/Finley3 no-merit letter on August 13, o withdraw without a hearing. See Pa.R.Crim.P. 907(1). Appellant responded to the Rule 907 notice and, on September 12, 2012, the PCRA court scheduled a hearing. On January 24, 2013, Appellant filed a supplemental PCRA document, which the court took under advisement as a further response to ____________________________________________ 3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). -3- J-S28040-14 4 petition. Appellant timely appealed.5 Appellant raises six issues for our review: 1). Whether trial counsel rendered ineffective [assistance] for Batson [c]laims? 2). Whether trial counsel rendered ineffective [assistance] for failing to object to the admittance into evidence of [C]ommonwealth Exhibit # 57? 3). Whether trial counsel rendered ineffective assistance of counsel for failing to call Anthony Collichio as a witness at the suppression hearing[?] Whether the evidence was sufficient to sustain the conviction without 4). Whether [the PCRA] court erred in granting [Appellant] an evidentiary hearing without the presence or representation of counsel?[] 5). Whether [PCRA] counsel rendered ineffective assistance of counsel for filing a no[-]merit/Finley [letter]?[] 6). [Appellant] in this present matter, just turned eighteen (18) on August 12, 2007 right before the crime was judged to have occured [sic] on August 24, 2007 and his concern and the ____________________________________________ 4 petition after counsel has filed a Turner/Finley no-merit letter, the PCRA court is under no obligation to addre Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014) (citation omitted). However, supplemental document] were well within its discretion and were in furtherance of achieving substantial justice for a PCRA petitioner who was proceeding pro se Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa. Super. 2003). 5 on November 21, 2013. See Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on January 2, 2014. See Pa.R.A.P. 1925(a). -4- J-S28040-14 concern of all Pe[n]nsylvania citizens who are protect[t]ors of established by Article V. Section 16, under Juveniles, makes the reference to those under eighteen (18) years of age, and to minors 18-20 years of age, the standard in Pennsylvania[?] Our standard of review for an order denying PCRA relief is well-settled: Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012[, appeal denied limited to the findings of the PCRA court and the evidence of supported by evidence of record and is free of legal err Id. the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such Id. (citations omitted). f law, our standard of review is de novo Id. Rigg, supra at 1084. Initially, we will (See address the ineffective assistance of counsel -16, 20-23). To obtain relief on a claim for ineffective assistance of counsel, Appellant must establish: ual Rykard, supra at 1189-90 (citation omitted) A failure to satisfy any prong of the -5- J-S28040-14 Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).6 ineffective assistance . . . for failing to properly preserve [his] Batson t relief. Pursuant to Batson, supra prosecutor [from] challeng[ing] potential jurors solely on account of their race. Batson, supra at 89. Our Supreme Court set forth the framework for analyzing a Batson claim, as follows: Batson set forth a three-part test for examining a criminal challenges in a racially discriminatory manner. First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race. Second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue. Third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination. Commonwealth v. Ligons, 971 A.2d 1125, 1142 (Pa. 2009) (citations omitted). ____________________________________________ 6 In this case, after erroneously citing Strickland v. Washington, 466 U.S. 668 (1984), for the three-prong ineffectiveness test, Appellant fails expressly discussion and citations. (See -16, 20-23); see also Pa.R.A.P. 2119(a)-(c). However, to the extent that we can discern the scuss their merits. -6- J-S28040-14 failing to make a Batson challenge at voir dire, our Supreme Court observed: in a case . . . where trial counsel did not lodge a contemporaneous Batson objection during voir dire, Appellant is not entitled to the benefit of Batson -shifting formula and must demonstrate actual purposeful discrimination by a preponderance of the evidence. [Where] [t]he only evidence icular jury is the fact that the prosecutor peremptorily struck more African Americans than Caucasians[,] [t]his fact, absent any other evidence of discrimination, is insufficient to demonstrate purposeful discrimination. Commonwealth v. Hanible, 30 A.3d 426, 478 (Pa. 2011), cert. denied, 133 S. Ct. 835 (2013) (citations omitted). Batson challenge was untimely. (See s argument that he was prejudiced motion on its merits. (See -8). Specifically, in spite of Batson hearing at which Appellant failed to provide any evidence to support his claim. (See PCRA Court Opinion, 1/02/14, at 5; see also N.T. Trial, 3/09/09, at 8-14). Based on -7- J-S28040-14 he had failed to establish a prima facie case of purposeful discrimination. (See PCRA Ct. Op., at 5; see also N.T. Trial, 3/09/09, at 12-13).7 Therefore, Appellant cannot establish prejudice where, even though counsel raised an untimely Batson challenge, the trial court held a Batson hearing and denied the claim. (See PCRA Ct. Op., at 5; see also N.T., 3/09/09, at 12-13). Hence, the issue is moot and the PCRA court properly found that Appellant failed to establish ineffectiveness of trial counsel. (See PCRA Ct. Op., at 5); see also Daniels, supra at 419; Rigg, supra at 1084; Rykard, supra at 1089- ineffective [assistance] for failing to object to the admittance into evidence claim does not merit relief. Appellant provides absolutely no pertinent citation or discussion to support his claim that the PCRA court erred in concluding that counsel was not ineffective for failing to object to the admission of exhibit number 57. See Pa.R.A.P. 2119(a)-(b); (see also -9; PCRA Ct. ____________________________________________ 7 individual noted that h of a police officer or other law enforcement officer because of his or her Batson Exhibit 2, Juror Information Questionnaire, at 1 ¶ 9, 4). -8- J-S28040-14 Op., at 6). He also fails to provide references to the record evidencing the admission. 2119(c). (See -9); see also Pa.R.A.P. Accordingly, this issue is waived. Moreover, it would not merit relief. Specifically, although Appellant argues that the he was prejudiced by the admission of the silver hand-gun, (see utterly failed to establish that, had counsel objected to it, the evidence would have been precluded. See Rykard, supra at 1189-90. In fact, the PCRA court observes: As shown by the testimony at trial, the Appellant and his CoDefendants had several guns in their possession during the commission of the crime, one of which was silver. One of the Defendant went through the Pine Ridge area after committing the crime. Exhibit #57 was found in the Pine Ridge area after the crime and it was silver. H.T. on 3/11/09, pg. 133-135. Appellant failed to provide any evidence that the Commonwealth misrepresented this evidence, presented false testimony or the like that would have provided a basis for his trial counsel to assert a valid, sustainable objection to Exhibit #57. The evidence was . . . admitted at trial and was probative as circumstantial proof of the connection between Appellant and his Co-Defendants. (PCRA Ct. Op., at 6). Based on our independent review of the record, we agree with the court and conclude that it properly acted within its broad discretion when it admitted the gun into evidence. See Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013), appeal denied court has broad discretion to determine whether evidence -9- A trial J-S28040-14 (citation omitted). Therefore, an objection by counsel would have lacked merit and, therefore, Appellant has failed to prove that counsel rendered ineffective assistance when he failed t admission of the gun at trial. See Rigg, supra at 1084. Hence, even if not ineffective assistance . . . for failing to call Anthony Callichio as a witness at 8 This claim lacks merit. We have long held that: To prevail on a claim of ineffectiveness for failure to call a witness, the [petitioner] must demonstrate that: (1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should have known of cooperate and would have testified on [the pe and (5) the absence of the testimony prejudiced [the petitioner]. Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted). In this case, assuming arguendo that Appellant has established that the proposed witness exists, he has utterly failed to prove any of the remaining prongs. (See -11); see also Hammond, ____________________________________________ 8 Appellant also raises an issue regarding the sufficiency of the evidence to support his conviction. (See evidence challenge is not the proper subject of a PCRA petition. See 42 Pa.C.S.A. § 9543(a)(2). Additionally, even if it were the proper subject of a direct appeal. See 42 Pa.C.S.A. § 9544(b). - 10 - J-S28040-14 supra at 556. Accordingly, this issue lacks merit. See Daniels, supra at 419; Rigg, supra at 1084; Rykard, supra at 1089-90. In his fifth claim, Appellant argues that PCRA counsel was ineffective for filing a Turner/Finley no-merit letter. (See -23). e it in the PCRA court. hen counsel files a Turner/Finley no-merit letter to the PCRA court, a petitioner must allege any claims of ineffectiveness of PCRA counsel laims of PCRA counsel ineffectiveness cannot be raised for the first time after a notice of Commonwealth v. Ford, 44 A.3d 1190, 1998, 1201 (Pa. Super. 2012), appeal denied, 54 A.3d 349 (Pa. 2012) (footnote omitted); see also Rigg, supra at 1084-85 (concluding that claim of PCRA counsel ineffectiveness waived where appellant did not include it in his response to Rule 907 notice). In his responses to the Rule 907 notice, Appellant did not allege that counsel was ineffective for filing a Turner/Finley no-merit letter. (Response to Court Order, 9/07/12, at 1-4). Accordingly, because Appellant raised this ineffectiveness of PCRA counsel claim for the first time in his Rule 1925(b) statement, (see Concise - 11 - J-S28040-14 Statement of [Errors] Complained of On Appeal, 11/21/13, at 2 ¶ 4), it is waived. See Rigg, supra at 1084-85.9 ims, we turn now to his fourth and sixth issues. In his fourth issue, Appellant claims that the PCRA court erred in Brief, at 17). This issue lacks merit. It has long been the law of this Commonwealth that: . . . . when counsel has been appointed to represent a petitioner in post-conviction proceedings as a matter of right under the ____________________________________________ 9 the PCRA court, Appe See Commonwealth v. Glover, 738 A.2d 460, 463 (Pa. Super. 1999) ( ounsel may withdraw at any stage of collateral proceedings if, in the exercise of his or her professional judgment, counsel determines that the issues raised in those proceedings are meritless and if the post-conviction court concurs with In this case, appointed PCRA counsel attached a thorough Turner/Finley letter to his motion to withdraw in which he detailed the lacked merit. (See Motion to Withdraw as PCRA Counsel, 8/13/12, at 1-2; see id. at Attachment, Turner/Finley Letter, 8/13/12, at 1-17). The PCRA court, after conducting its own independent review, agreed that none of (See PCRA Ct. Op., at 1). Accordingly, we conclude that the PCRA court did not err when it determined that counsel was not ineffective for filing a Turner/Finley letter. (See id. at 8); see also Daniels, supra at 419; Rigg, supra at 1084-85; Rykard, supra at 1089-90; Glover, supra at 463. - 12 - J-S28040-14 rules of criminal procedure and when that right has been fully vindicated by counsel being permitted to withdraw under the procedure authorized in Turner[/Finley], new counsel shall not be appointed and the petitioner . . . must thereafter look to his or her own resources for whatever further proceedings there might be. Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote omitted and emphasis added); see also Rykard, supra at 1183 n.1 (same); Glover, supra at 463 (holding that after appointed PCRA counsel is granted permission to withdraw on the basis of Turner/Finley he post- conviction petitioner then may proceed pro se, by privately retained counsel, Turner/Finley letter and its own independent review, the court allowed counsel to withdraw. (See Order, 8/20/13, at 1; PCRA Ct. Op., at 1; see also Motion to Withdraw as PCRA Counsel, 8/13/12, at 1-2, Attachment, Turner/Finley Letter, 8/13/12, at 1-17). The court advised Appellant that, if he chose to pursue the PCRA claims, he could do so either pro se or by retaining new counsel. (See Order, 8/20/13, at 1); see also Maple, supra at 956; Rykard, supra at 1183 n.1 (same); Glover, supra at 463. Appellant elected to proceed with his PCRA petition pro se. (See 9/07/12, at 1- Required Brief to be Submitted, 7/29/13). - 13 - J-S28040-14 Based on the foregoing, we conclude that the court properly conducted See Maple, supra at 956; see also Rykard, supra at 1183 n.1; Glover, supra In hi was violated by receiving a mandatory life sentence when he was a sentence violates the holding of Miller v. Alabama, 132 S. Ct. 2455 (2012), which should be applied retroactively. (See id. at 24-25). This issue lacks merit. In Miller, the Supreme Court of the United States held that t Miller, supra at 2460. Here, Appellant admits that he was eighteen years old at the time that he committed the subject murder. (See not under the age of eighteen at the time he committed the relevant crime, the holding of Miller does not apply to his circumstances.10 See Miller, supra at 2460. ____________________________________________ 10 Moreover, our Supreme Court has concluded that Miller does not apply retroactively to a PCRA petitioner. See Commonwealth v. Cunningham, (Footnote Continued Next Page) - 14 - J-S28040-14 Therefore, the certified recor Miller, supra lacks arguable merit. (See See Rigg, supra at CRA petition. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/4/2014 (Footnote Continued) _______________________ 81 A.3d 1, 7 (Pa. 2013), petition for cert. filed, 82 USLW 3555 (Feb. 26, 2014). - 15 -

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