Com. v. Burgess, R. (memorandum)

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J-S20038-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT L. BURGESS Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1375 WDA 2021 Appeal from the PCRA Order Entered October 26, 2021 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0002178-2012 BEFORE: NICHOLS, J., MURRAY, J., and KING, J. MEMORANDUM BY KING, J.: FILED: NOVEMBER 09, 2022 Appellant, Robert L. Burgess, appeals pro se from the order entered in the Beaver County Court of Common Pleas, which dismissed his first petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm. The PCRA court opinion accurately set forth the facts and procedural history of this case. (See PCRA Court Opinion, filed 10/26/21, at 1-10). Therefore, we will only briefly summarize the facts and procedural history most relevant to this appeal. Appellant and his co-defendant, Devon Shealey, became involved with Demetria Harper through a mutual acquaintance, Margarette Moore. Ms. Moore testified that Appellant and Mr. Shealey made a plan with Ms. Harper whereby Appellant would give Ms. Harper money to ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. J-S20038-22 buy marijuana from El Paso, Texas at a cheap rate and mail the drugs to Appellant’s residence in Pittsburgh. Pursuant to their plan, on June 25, 2008, Appellant, Ms. Harper, Ms. Moore and another individual named Sean Kenney met at the Pittsburgh International Airport. Appellant and Mr. Kenney walked towards the ATM machine and withdrew money to give to Ms. Harper, and she boarded the plane for El Paso. On June 27, 2008, Ms. Harper told Ms. Moore that El Paso police confiscated the marijuana that she purchased. Appellant did not believe that Ms. Harper was telling the truth. On June 30, 2008, Ms. Moore saw a box being delivered to Ms. Harper’s residence and relayed this information to Appellant. Ms. Harper’s daughter testified that later that same evening she and her sister went to their parents’ bedroom to retrieve a ball and encountered a tall, skinny man wearing all black with a mask covering his face. The man ordered the girls to go inside their parents’ closet at gunpoint. Another shorter man with a mask covering his face was also present. The girls heard the men arguing with their parents regarding a box. The men took Ms. Harper, and her husband, Richard Harper, to the basement. The tall man returned and ordered the girls to the basement where they saw their parents lying on the floor with their hands and feet tied up. The men directed the girls into a furnace room, from where they heard two gunshots. Appellant’s cousin, Tyrone Beasley, testified that on the evening that the Harpers were murdered, Appellant asked Mr. Beasley to switch cell phones -2- J-S20038-22 with him, stating that someone had stolen money from him. On July 2, 2008, Mr. Beasley learned about the double homicide on the news. When he asked Appellant whether he had anything to do with murders, Appellant nodded his head in the affirmative and admitted to participating in the shootings. Isaiah Paillett testified that he and Appellant were incarcerated on the same cell block in 2010 and became acquainted. Mr. Paillett testified that Appellant admitted to murdering the Harpers with Mr. Shealey and provided specific details about the homicide. On October 28, 2014, a jury convicted Appellant of two counts of first degree murder, burglary, kidnapping, unlawful restraint and various firearms and drug charges. Appellant filed a timely post-sentence motion, claiming, among other things, that the evidence was insufficient to establish that Appellant was the person who committed the crimes of which he was convicted. The trial court denied the post-sentence motion on March 31, 2015. Appellant’s counsel did not choose to pursue the insufficiency claim on appeal but proceeded on other grounds. This Court affirmed the judgment of sentence on August 30, 2016, and our Supreme Court denied the petition for allowance of appeal on February 28, 2017. See Commonwealth v. Burgess, 156 A.3d 353 (Pa.Super. 2016) (unpublished memorandum), appeal denied, 641 Pa. 246, 167 A.3d 699 (2017). On September 8, 2017, Appellant timely filed a pro se PCRA petition. The PCRA court appointed counsel, who filed a no-merit letter and petition to -3- J-S20038-22 withdraw. On January 9, 2019, the PCRA court granted counsel’s petition to withdraw and issued notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907. In response, Appellant filed a pro se amended PCRA petition on July 24, 2019. and obtained new counsel who filed an amended PCRA petition on May 3, 2021. The court held a PCRA hearing on August 5, 2021 and August 6, 2021, and denied PCRA relief on October 26, 2021. Appellant filed a timely notice of appeal on November 15, 2021. On December 3, 2021, the PCRA court ordered Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b), and Appellant complied on December 9, 2021. On December 20, 2021, Appellant filed a motion to proceed pro se on appeal, which the PCRA court granted following a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). Appellant raises the following issues for our review: Did trial and appellate counsel provide ineffective assistance when they failed to raise [that] the prosecutor did not establish sufficient facts to prove Appellant was the actual person who committed the crimes charged beyond a reasonable doubt on direct appeal? Did trial and appellate counsel provide ineffective assistance when they failed to call a material witness who would have testified that he assisted the Commonwealth’s jailhouse [informant] in obtaining material facts from Appellant’s cell during his absence in order to provide false testimony so he could avoid a fifteen year to life sentence in federal court? (Appellant’s Brief at 3). In his issues combined, Appellant contends that appellate counsel provided ineffective assistance by failing to pursue a challenge to the -4- J-S20038-22 sufficiency of the evidence on appeal. Appellant asserts that the Commonwealth presented two equally and mutually inconsistent inferences about who committed the crimes and failed to prove beyond a reasonable doubt that Appellant, and not Mr. Kenney, committed the murders. Appellant argues that Ms. Moore described Mr. Kenney as tall and dark skinned which is the same description given by Ms. Harper’s daughter of the masked assailant. Appellant insists that Mr. Kenney was present at various stages in the drug deal and the evidence demonstrates that it was just as likely that Mr. Kenney committed the murders as it was that Appellant committed them. Appellant contends there was no reasonable basis for counsel’s failure to pursue this meritorious claim on appeal and the advancement of such a claim would have resulted in a new trial. Further, Appellant asserts that trial counsel provided ineffective assistance by failing to call a material witness, Lamon Street, who would have provided key testimony to discredit Mr. Paillett’s testimony against Appellant. Appellant posits that Mr. Street would have testified that Mr. Paillett planned to search Mr. Shealey’s cell for documents to learn details about the Harper murders to falsely testify against Mr. Shealey and Appellant in the hopes of getting a lighter sentence for himself. Appellant asserts that Mr. Street testified as such during Mr. Shealey’s trial and would have been willing to do so for Appellant as well. Appellant claims Mr. Paillett’s testimony was instrumental in establishing that Appellant committed the murders and there -5- J-S20038-22 was no reasonable basis for counsel’s failure to call a witness that would have demonstrated that Mr. Paillett’s testimony was false. Appellant concludes that trial and appellate counsel were ineffective for failing to call Mr. Street as a witness at trial and failing to pursue a challenge to the sufficiency of the evidence on appeal, and he is entitled to a new trial. We disagree. “Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error.” Commonwealth v. Beatty, 207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 428, 218 A.3d 850 (2019). 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). “[W]e review the court’s legal conclusions de novo.” Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, __ Pa. __, 268 A3.d 386 (2021). “Counsel is presumed to have rendered effective assistance.” Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal denied, ___ Pa. ___, 242 A.3d 908 (2020). [T]o establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no -6- J-S20038-22 reasonable strategic basis for his or her 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. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and quotation marks omitted). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111 (2011). “The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175, 179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim.” Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004). “Once this threshold is met we apply the ‘reasonable basis’ test to determine whether counsel’s chosen course was designed to effectuate his client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95). The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel’s decisions will be -7- J-S20038-22 considered reasonable if they effectuated his client’s interests. We do not employ a hindsight analysis in comparing trial counsel’s actions with other efforts he may have taken. Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting Sandusky, supra at 1043-44). Claims involving appellate counsel ineffectiveness, moreover, involve concerns unique to appellate practice. Arguably meritorious claims may be omitted in favor of pursuing claims which, in the exercise of appellate counsel’s objectively reasonable professional judgment, offer a greater prospect of securing relief. Appellate counsel ... need not and should not raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. This process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Commonwealth v. Lambert, 568 Pa. 346, 366, 797 A.2d 232, 244 (2001) (internal quotation marks and citations omitted). “To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. [A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312 (2014) (internal citations and quotation marks omitted). “[A] criminal defendant alleging prejudice must show that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3, -8- J-S20038-22 22, 807 A.2d 872, 883 (2002)). When raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies the performance and prejudice requirements … 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. Sneed, 616 Pa. 1, 22–23, 45 A.3d 1096, 1108–09 (2012) (internal citations omitted). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable John P. Dohanich, we conclude Appellant’s issues merit no relief. In its opinion, the PCRA court comprehensively discusses and properly disposes of the issues presented. (See PCRA Court Opinion at 11-20; 29-35) Specifically, the court found that a challenge to the sufficiency of the evidence would have had no arguable merit because the Commonwealth presented evidence that Appellant was involved in a drug deal with Ms. Harper, Appellant believed Ms. Harper cheated him out of money, and Appellant confessed to the murder to his cousin, Mr. Beasley, and Mr. Paillett. Further, the court determined that appellate counsel credibly testified that he did not pursue the insufficiency claim on appeal because he eliminated it as a weaker argument and chose to pursue claims that were more likely to succeed. See Lambert, supra. Regarding trial counsel’s failure to call Mr. Street as a -9- J-S20038-22 witness, the court found that trial counsel credibly testified that he visited Mr. Street to gauge his willingness to testify but Mr. Street indicated that he would not be cooperative because he did not want to come to Beaver County Jail for this purpose while his own trial was pending in Allegheny County. Therefore, the court found that trial counsel had a reasonable basis for failing to call Mr. Street as a witness given that counsel was unsure what Mr. Street would say due to his unwillingness to testify. Accordingly, the court determined that Appellant could not succeed on either of his ineffective assistance of counsel claims. rationale. See Sandusky, supra. The record supports the PCRA court’s See Beatty, supra; Boyd, supra. Accordingly, we affirm the order denying PCRA relief on the basis of the PCRA court’s opinion. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/09/2022 - 10 - Circulated 10/28/2022 02:49 PM

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