Com. v. Selby, C. (memorandum)

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J.S26033/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. CHARLES M. SELBY, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3245 EDA 2013 Appeal from the PCRA Order October 22, 2013 In the Court of Common Pleas of Delaware County Criminal Division No(s).: CP-23-CR-0004009-2008 BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 26, 2014 Appellant, Charles M. Selby, appeals from the order entered in the Delaware County Court of Common Pleas that denied, without an evidentiary hearing, his first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. ยงยง 9541-9546. Appellant claims that the PCRA court erred by failing to conduct an evidentiary hearing. We are constrained to affirm. 1 and need not be restated here. The relevant procedural history is as follows. Appellant was * Former Justice specially assigned to the Superior Court. 1 PCRA Ct. Op., 1/2/14, at 2-8. J. S26033/14 arrested on May 7, 2008, after Pennsylvania State Troopers, through a confidential informant, arranged for a controlled purchase of marijuana and t of a traffic the troopers obtained a search warrant for an apartment believed to be the location where Appellant stored controlled substances. executed the warrant and discovered various The troopers controlled substances, paraphernalia, and a handgun. Appellant, through trial counsel, Timothy Possenti, Esq., filed pretrial motions on August 15, 2008, seeking the suppression of all evidence discovered in the vehicle and the apartment. Specifically, Appellant asserted -2. The trial court, with Judge William R. Toal presiding, conducted a suppression hearing on discussed with counsel at sidebar the decision in this matter and the possibility of trying t continued the case until September 14, 2009, and permitted trial counsel to submit additional arguments in support of the suppression motions. Id. The certified record thereafter contains no indication that trial counsel submitted additional arguments after the suppression hearing, although the -2- J. S26033/14 Commonwealth, on August 27, 2009, filed a memorandum of law in opposition to the suppression motions. Of significance to the present appeal, the record does not contain any findings of fact, conclusions of law, or order disposing of the suppression motions. See Pa.R.Crim.P. 581(I). Instead, on September 14, 2009, the trial court called the case for trial, at which time the parties selected a jury. On September 16, 2009, the parties litigated motions in limine. The Commonwealth then presented its evidence to the jury, including the evidence that had been the subject of his right to testify following a colloquy and the defense presented no evidence. The jury, that same day, found Appellant guilty of all offenses and rendered a specific finding that Appellant possessed the handgun discovered in the apartment. The trial court, on December 8, 2010, sentenced Appellant to an aggregate thirteen to twenty- - sentencing counsel, Richard C. Daubenberger, Esq., timely filed a postsentence motion challenging the weight of the evidence. Consideration of the motion was assigned to Judge Barry C. Dozor, who denied post-sentence relief on March 29, 2010. Appellant took a direct appeal to this Court challenging the sufficiency and weight of the evidence. This Court affirmed the judgment of sentence on January 31, 2011, and the Pennsylvania Supreme Court denied allowance -3- J. S26033/14 of appeal on November 1, 2011. Commonwealth v. Selby, 882 EDA 2010 (unpublished memorandum) (Pa. Super. Jan. 31, 2011), appeal denied, 160 MAL 2011 (Pa. Nov. 1, 2011). Appellant filed the pro se PCRA petition giving rise to this appeal on October 26, 2012. The PCRA court, with Judge James P. Bradley presiding, appointed present counsel, who, in turn, filed an amended petition on September 26, 2013. The amended petition set forth the following claim: and litigated a Motion to Supress [ ] Evidence. This matter proceeded to Trial without the Court ever ruling and issuing an Order as to the suppression iss On October 1, 2013, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing, after which it dismissed the petition on October 22, 2013.2 Appellant timely filed a notice of appeal.3 2 3 Although the PCRA court ordered the filing of a Pa.R.A.P. 1925(b) Rule 1925(b) statement until December 18, 2013 two days after the twenty-one-day deadline expired. There was no explanation for the facially untimely filing of the Rule 1925(b) statement. However, we decline to find waiver under Pa.R.A.P. 1925(b)(4)(vii) or to remand this case under Pa.R.A.P. 1925(c)(1) for a determination of whether the statement was timely filed. See Commonwealth v. Burton, 973 A.2d 428, 432-33 (Pa. Super. 2009) (en banc). But see Commonwealth v. Hill, 16 A.3d 484, 495 n.14 (Pa. 2011) (noting, in dicta, that PCRA is civil in nature and that remand procedures in Pa.R.A.P. 1925(c)(3) for filing of a statement of errors nunc pro tunc may not apply). -4- J. S26033/14 Appellant presents a single issue in this appeal, namely, whether the PCRA court erred in denying, without an evidentiary hearing, his claim that trial counsel was ineffective for proceeding to trial before receiving an order disposing of his suppression motions. See support, Appellant sets forth the following argument: If an [e]videntiary hearing had been granted . . . a record would have been established as to the lack of a decision prior to this matter proceeding to [t]rial. . . . It is respectfully argued that it was ineffectiveness of [t]rial [c]ounsel to proceed to trial without having received a decision on the suppression issues he raised . . . . Id. at 15. No relief is due. Our standards of review are well settled. dismissing a PCRA petition, we are limited to determining record and whether the order in question is free of legal unless there is no support for the findings in the certified evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing. Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008) (citations omitted). We are further mindful that in order to obtain relief on a claim of ineffective assistance of counsel, -5- J. S26033/14 the PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is at issue did not have a reasonable basis for his action or inaction; and (3) the PCRA petitioner suffered prejudice as act or omission in question, the outcome of the proceedings would have bee that a petitioner has failed to meet any of the three, distinct prongs . . . the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met. Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citations omitted). Following our review, we are compelled to agree with the PCRA court resulted in a waiver of the claim of ineffectiveness giving rise to this appeal. contention that the trial court did not comply with Pa.R.Crim.P. 581(I).4 Nevertheless, the record makes clear that the trial court intended to deny the suppression motions, see N.T., at 114 (indicating that trial court decided 4 findings of fact and conclusions of law as to whether the evidence was violation of these rules or any statute, and shall make an order granting or denying the relief Because there is no dispute that the trial court failed to comply with Rule 581(I), there was no need for a further evidentiary hearing on the order disposing of his suppression motions was not filed of record. -6- J. S26033/14 of trial, but granted parties continuance in order to permit, inter alia, supplemental arguments). Thus, fact that the outcome of the suppression hearing or an appeal would have mply with Rule 581(I) is fatal to the instant claim of ineffectiveness.5 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/26/2014 5 comply with Rule 581(I). Indeed, although not raised by the parties, we are compelled to note that Rule 581(I) is integral to effective review for the purposes of a direct appeal. See Commonwealth v. Grundza, 819 A.2d 66, 68 (Pa. Super. 2003). We further note that i boilerplate pleadings and argument in this appeal, we need not consider to present an issue on direct appeal. -7-

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