Com. v. Bradshaw, T.

• Court: Superior Court of Pennsylvania
• Decided: August 21, 2020
• Docket: 1061 MDA 2019
• Status: Unpublished

Opinion

J-S25042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYLER MITCHELL BRADSHAW : : Appellant : No. 1061 MDA 2019

Appeal from the PCRA Order Entered June 13, 2019 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0003479-2012

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.: FILED AUGUST 21, 2020

Appellant, Tyler Mitchell Bradshaw, appeals pro se from the order

entered in the Cumberland County Court of Common Pleas, which denied his

petition brought under the Post-Conviction Relief Act (“PCRA”).1 We affirm.

The relevant facts and procedural history of this case are as follows. On

November 18, 2012, Appellant and several cohorts planned and executed an

armed robbery of a gas station convenience store, resulting in the fatal

shooting of the store clerk. The Commonwealth subsequently charged

Appellant with criminal homicide, robbery, and conspiracy. Following trial, a

jury convicted Appellant on September 11, 2014, of second-degree murder,

robbery, conspiracy to commit murder, and conspiracy to commit robbery.

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1 42 Pa.C.S.A. §§ 9541-9546. J-S25042-20

The court sentenced Appellant on December 16, 2014, to life imprisonment.

On November 16, 2015, this Court affirmed the judgment of sentence. See

Commonwealth v. Bradshaw, 134 A.3d 494 (Pa.Super. 2015) (unpublished

memorandum). Appellant sought no further direct review.

Appellant timely filed pro se his first and current PCRA petition on

October 6, 2016. The PCRA court appointed counsel, who filed a petition to

withdraw and a Turner/Finley2 no-merit letter on February 23, 2017. On

April 17, 2017, Appellant filed a pro se request for all hearing and trial

transcripts, which the court granted that same day. Following a hearing on

counsel’s petition, the court permitted counsel to withdraw on May 2, 2017.

That same day, the court issued notice of its intention to dismiss Appellant’s

petition without an evidentiary hearing per Pa.R.Crim.P. 907.

On September 18, 2017, Appellant filed untimely pro se objections to

Rule 907 notice. In his objections, Appellant raised several claims of

ineffective assistance of PCRA counsel and requested leave to file a brief in

support of his objections. Appellant filed on September 28, 2017, a motion to

amend the trial notes of testimony to include full transcriptions of opening jury

instructions and opening and closing statements. On June 13, 2019, the PCRA

court granted Appellant’s request to complete the transcripts, overruled

Appellant’s Rule 907 notice objections, and dismissed his PCRA petition.

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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Appellant timely filed a pro se notice of appeal on July 1, 2019, and a voluntary

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b) on

July 5, 2019. Transcriptions of the opening jury instructions and opening and

closing statements were filed on July 16, 2019.

Appellant raises the following issues for our review:

Whether the PCRA court erred by dismissing [Appellant]’s first PCRA petition since [Appellant] pled and thus apprised the PCRA court that he has been denied due process of law (such that the award of a new trial is warranted) since the transcripts of [Appellant]’s 2014 jury trial are incomplete, and the PCRA court’s June 1[3], 2019 order to amend the, transcripts (i.e., nearly two years after [Appellant] notified the PCRA court of the missing portions of the trial transcripts) has provided the obvious opportunity for alterations (to the record) to prevent [Appellant] from advancing claims of trial court error and prosecutorial misconduct related to the trial court’s “opening instructions to the jury”; the prosecutor’s “opening statements”; and, the prosecutor’s “closing arguments”?

Whether [Appellant]’s PCRA counsel was ineffective in failing to plead that [Appellant]’s trial counsel (also, direct appeal counsel) was ineffective for failing to motion for a new trial since crucial portions of [Appellant]’s 2014 trial transcripts are missing, and any proceedings on the basis of such incomplete records abridge [Appellant]’s right of appeal and render [Appellant]’s direct appeal to be meaningless?

Whether the PCRA court erred by overruling [Appellant]’s “Objection to the [PCRA Court’s] Notice of Intent to Dismiss PCRA Petition Pursuant to Pa.R.Crim.P. 907 Nunc Pro Tunc” since [Appellant] thereby pled meritorious grounds for collateral relief on [Appellant]’s first PCRA and thereby requested leave to brief the matter to the PCRA court prior to the PCRA court’s dismissal of [Appellant]’s first PCRA petition?

Whether the PCRA court erred by denying [Appellant]’s first

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PCRA petition since the second paragraph of the June 1[3], 2019 “final order” proffers findings that lack any legal authority, and that are in direct conflict with holdings of the United States Supreme Court in Bounds v. Smith, 97 S.Ct. 1491 (1977); holdings of the Pennsylvania Supreme Court in both Commonwealth v. Shields, 383 A.2d 844 (Pa. 1978), and Commonwealth v. Sepulveda, 55 A.3d 1108, 1149-1150 (Pa. 2012); and, holdings of [the Superior Court] in Commonwealth v. Szakal, 50 A.3d 210, 216 (Pa.Super. 2012), all of which establish that where the entire transcript of a trial is unavailable, meaningful appellate review is not possible and a new trial must be awarded?

Whether the PCRA court abused its discretion in filing a June 1[3], 2019 order for [Appellant]’s trial transcripts to be amended (i.e., well after [Appellant]’s 2014 conviction had been rendered final) since the relevant legal authority directs that where the entire transcript of a trial is unavailable, meaningful appellate review is not possible and a new trial must be awarded see Commonwealth v. Shields, 383 A.2d 844 (Pa. 1978); Commonwealth v. Szakal, 50 A.3d 210, 216 (Pa.Super. 2012)?

(Appellant’s Brief at 3-5).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v. H.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). 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). We give no such deference, however, to the court’s legal

conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).

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Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the

PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335 (Pa.Super. 2012).

In his issues combined, Appellant argues PCRA counsel rendered

ineffective assistance for failing to request and raise issues related to the

missing segments of the trial transcripts, namely opening jury instructions and

opening and closing statements. Appellant claims PCRA counsel was also

ineffective for failing to assert that trial/appellate counsel rendered ineffective

assistance when counsel did not complete the trial transcripts and present

issues that might stem from the absent notes of testimony. Appellant avers

the failure to procure the full notes of testimony violated his right to due

process and rendered the Superior Court’s disposition on direct appeal illusory.

Appellant suggests the now-complete notes of testimony omit objections trial

counsel allegedly made to the Commonwealth’s remarks during opening jury

instructions and opening and closing arguments.

Appellant adds that the PCRA court improperly denied his request to file

a brief in support of his Rule 907 notice objections. Appellant contends the

PCRA court erred when it delayed granting Appellant’s request to amend the

trial transcripts and disposed of Appellant’s petition without complete

transcripts. Appellant concludes this Court should vacate and remand for a

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new trial. We disagree.

The law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). To prevail

on a claim of ineffective assistance of counsel, a petitioner bears the burden

to prove his claims by a preponderance of the evidence. Commonwealth v.

Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940

A.2d 365 (2007). The petitioner must demonstrate: (1) the underlying claim

has arguable merit; (2) counsel had no reasonable strategic basis for the

asserted 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. Id.

“[T]o succeed on an allegation of…counsel’s ineffectiveness…a post-

conviction petitioner must, at a minimum, present argumentation relative to

each layer of ineffective assistance, on all three prongs of the ineffectiveness

standard….” Commonwealth v. D’Amato, 579 Pa. 490, 500, 856 A.2d 806,

812 (2004) (internal citations omitted). “Where it is clear that a petitioner

has failed to meet any of the three, distinct prongs of the [ineffectiveness]

test, 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, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008). “[A]n undeveloped

argument, which fails to meaningfully discuss and apply the standard

governing the review of ineffectiveness claims, simply does not satisfy [the

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petitioner’s] burden of establishing that he is entitled to any relief.”

Commonwealth v. Bracey, 568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4

(2001). See also Commonwealth v. Chmiel, 612 Pa. 333, 362, 30 A.3d

1111, 1128 (2011) (explaining boilerplate allegations and bald assertions of

no reasonable basis and/or ensuing prejudice cannot satisfy petitioner’s

burden of proving ineffectiveness).

“To ensure a defendant’s right to meaningful appellate review [the

Pennsylvania Supreme Court] requires that he…be furnished a full transcript

or other equivalent picture of the trial proceedings.” Commonwealth v.

Albrecht, 554 Pa. 31, 47, 720 A.2d 693, 701 (1998) (internal quotation

marks omitted). Nevertheless, “to be entitled to relief due to the

incompleteness of the trial record the defendant must make some potentially

meritorious challenge which cannot be adequately reviewed due to the

deficiency in the transcript.” Commonwealth v. Lesko, 609 Pa. 128, 239,

15 A.3d 345, 411 (2011) (quoting Commonwealth v. Marinelli, 589 Pa.

682, 709-10, 688, 910 A.2d 672, 688 (2006)).

Significantly, an ineffective assistance of counsel argument based upon

a bald claim that significant portions of trial were not transcribed lacks merit.

Commonwealth v. Sepulveda, 618 Pa. 262, 333, 55 A.3d 1108, 1150

(2012). Rather, to succeed on an ineffective assistance of counsel claim for

failure to procure complete transcripts, the petitioner must “identify and

develop the specific…issue he believes would have won the day on direct

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appeal.” Lesko, supra at 239, 15 A.3d at 411.

…[C]onclusory allegations [are] utterly insufficient to “raise a colorable question of whether due process was violated” by the alleged unavailability of the notes of a particular day’s testimony. Albrecht[supra, at 47-48,] 720 A.2d at 701 (rejecting appellant’s “bald [] assert[ion] that there may have been some improper questions on cross-examination which the trial court failed to remedy”); see also Commonwealth v. Blystone, 555 Pa. 565,[ 575 n.9,] 725 A.2d 1197, 1201 n. 9 (1999) (denying request for restoration of right to direct appeal in light of appellant’s “fail[ure] to present any specific evidence to demonstrate that there may be a cognizable claim contained within the untranscribed voir dire proceedings”).

Marinelli, supra at 710, 910 A.2d at 688. In other words, counsel’s failure

to procure complete transcripts does not amount to presumed prejudice.

Lesko, supra at 239-40, 15 A.3d at 411-12. Rather, to establish prejudice,

a petitioner must raise a viable claim that the absence of complete notes of

testimony violated his due process rights. Albrecht, supra at 47-48, 720

A.2d at 701-02.

Instantly, in Appellant’s layered ineffectiveness claim, he baldly states

that the failure to obtain complete trial transcripts violated his due process

rights and deprived this Court of meaningful review on direct appeal.

Nevertheless, Appellant makes no argument as to (1) what meritorious

appellate claims stemmed from the omitted segments of the trial transcripts

or (2) how counsels’ failure to request the full transcript and raise those

purported claims would have changed the outcome of his direct appeal. See

Lesko, supra; Marinelli, supra; Albrecht, supra. To the extent Appellant

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argues that a viable claim might stem from trial counsel’s alleged objections

to statements the prosecutor made during opening jury instructions and

opening and closing arguments, his argument fails. Appellant does not

describe what the prosecutor purportedly said or the nature of counsel’s

objections.3 Instead, Appellant merely speculates that appellate claims could

stem from the prosecutor’s statements, but he does not identify any such

claims. See Lesko, supra; Marinelli, supra. Thus, Appellant’s bald

assertions fail to satisfy the arguable merit and prejudice prongs of the

ineffectiveness test. See Sepulveda, supra; Lesko, supra; Marinelli,

supra; Albrecht, supra.

Further, Appellant’s assertions of PCRA court error fail. Initially,

Appellant cites no law in support of his claims that the PCRA court improperly

denied his petition without reviewing the subject notes of testimony; or that

the PCRA court erroneously denied his request to file a brief supporting his

objections to Rule 907 notice. Consequently, these claims are waived. See

Commonwealth v. Tha, 64 A.3d 704 (Pa.Super. 2013) (holding failure to

properly develop argument with citations to relevant legal authority renders

3 To the extent Appellant suggests that someone purposefully omitted from the fully-transcribed notes of trial testimony defense counsel’s alleged objections to the Commonwealth’s remarks, his argument is specious. Appellant offers no support for his theory beyond his rationale that the delay in filing a complete transcript provided an opportunity for tampering. Furthermore, nothing in the record supports Appellant’s contention. Without more, Appellant’s claim amounts to mere speculation and conjecture.

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issue unreviewable and waived on appeal). Moreover, that the PCRA court

lacked the “complete” notes of testimony when it dismissed Appellant’s

petition is immaterial, where Appellant failed to satisfy his burden to plead

and prove counsels’ ineffectiveness. Based upon the foregoing, we see no

reason to disturb the PCRA court’s order denying relief. See H. Ford, supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/21/2020

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