Com. v. Burnett, K.

• Court: Superior Court of Pennsylvania
• Decided: July 23, 2021
• Docket: 1129 EDA 2020
• Status: Unpublished

Opinion

J-S18014-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KHALIL BURNETT : : Appellant : No. 1129 EDA 2020

Appeal from the PCRA Order Entered March 5, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003222-2009

BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED JULY 23, 2021

Khalil Burnett appeals from the order dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. The only issue on appeal is whether the PCRA court erred by

determining that trial counsel was not ineffective for failing to raise a self-

defense claim. Burnett’s appointed counsel has filed an application to withdraw

from representation and a corresponding no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988).1 Because we agree with counsel

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* Retired Senior Judge assigned to the Superior Court.

1As the Commonwealth points out, counsel mistakenly labeled his brief an Anders brief. Anders applies only when counsel seeks to withdraw from (Footnote Continued Next Page) J-S18014-21

and the PCRA court that Burnett’s ineffectiveness claim has no merit, we grant

counsel’s application and affirm the PCRA court’s order denying the PCRA

petition.

When we review the denial of a PCRA petition, we examine whether the

PCRA court’s determinations are supported by the record and free of legal

error. See Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013). The

PCRA court’s credibility determinations, when supported by the record, are

binding on this Court. See id. However, we apply a de novo standard of review

to the PCRA court’s legal conclusions. See id.

On October 4, 2008, Burnett was involved in a gunfight on the 7300

block of Garman Street in Philadelphia. Burnett was shot in the leg during the

gunfight and taken to the hospital for treatment. He was subsequently

arrested and charged with multiple offenses related to the gunfight. He

proceeded to a jury trial in June of 2012.

At trial, Rosemarie Schrader testified that she was sitting on the front

porch of her home on the 7300 block of Garman Street when she heard what

she thought were fireworks. She looked up, and saw two Black males with

representation on direct appeal. When counsel seeks to withdraw from representation on collateral appeal, as here, Turner and Finley apply. See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). Counsel’s mistake is not fatal to his application to withdraw, though, as we have held that “because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Id. (citation omitted).

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white t-shirts running down the middle of the street and away from the

direction of the sound. She saw those two males turn onto Berbro Street at

the end of the block. As she looked in the opposite direction, Schrader saw

another Black male, who Schrader testified was wearing a dark “Dickies”

uniform. Schrader further recounted that she saw this male’s hand

“outstretched,” and then she saw a flash that she immediately recognized as

a gunshot. See N.T. Trial, 6/26/12 at 56-57. She heard that male yelling, “Go

ahead and run pussies!“ See id. at 57. The male with the gun then ran in the

same direction as the other two males, and he also turned onto Berbro Street.

Detective Keith Scott of the Philadelphia Police Department also testified

at Burnett's trial. He stated that he was on patrol on October 4, 2008, when

he received a radio call alerting him about the shooting. He received

information that there were two Black males, one wearing a white shirt and

the other a dark shirt, who had possibly been involved in the shooting.

Detective Scott saw two males matching the description go up the stairs of

the enclosed front porch of 2602 Berbro Street and then come out moments

later. Burnett was one of the males, who Detective Scott testified was wearing

a blue “Dickies” uniform. Burnett informed the detective that he had been

shot. When Detective Scott learned that Burnett did not live at the 2602

Berbro Street address, he searched the inside of the enclosed porch and saw

a gun protruding from a lawn mower bag. Detective Scott secured the scene

and had Burnett escorted to the hospital.

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Detective Timothy McCool also testified. He explained that he was

assigned to investigate the shooting and that he recovered a .45 caliber

revolver containing six fired cartridge casings from the enclosed front porch

of 2602 Berbro Street. He also recovered 16 fired cartridge casings of varying

types from the corner of Garman and [nearby] Bialy Streets and a projectile

from the 7300 block of Garman Street. He opined that, including the revolver,

“there were four different weapons fired that day.” Id. at 154.

Burnett did not testify at trial but he presented the testimony of his

cousin, who claimed that he had been standing outside on Garman Street with

Burnett and another person on the night of the shooting when “somebody

threw a hood on [and] started shooting.” N.T. Trial, 6/27/12, at 41. The cousin

testified that he, Burnett and the other person started running and rounded a

corner, when Burnett told him he had been shot.

The jury nonetheless convicted Burnett of criminal trespass, possession

of a firearm by a minor and aggravated assault. On September 4, 2012, the

court sentenced him to an aggregate term of 12 to 32 years’ imprisonment.

Burnett appealed to this Court, and we affirmed his judgment of sentence.

Burnett did not file a petition for allowance of appeal with our Supreme

Court, but instead filed a timely, pro se PCRA petition. Counsel was appointed

and filed a supplemental PCRA petition on Burnett’s behalf claiming counsel

was ineffective for failing to: 1) raise a self-defense claim; 2) object to the

court’s failure to give the jury a “no adverse inference” instruction; and 3)

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challenge the legality of Burnett’s sentence. In response, the Commonwealth

filed a motion to dismiss the petition and the PCRA court issued a Pa.R.Crim.P.

907 notice of its intent to dismiss the petition without a hearing. Burnett did

not file a response to the notice, and the court dismissed the petition in an

order dated August 11, 2017 on the basis that the petition had no merit.

Burnett appealed the court’s order dismissing his petition to this Court.

We concluded, in the first instance, that the PCRA court had properly

dismissed Burnett’s ineffectiveness claims regarding the legality of his

sentence and the jury instructions. However, we held that the PCRA court had

erred by not holding a hearing on Burnett’s claim that counsel had been

ineffective for failing to pursue a self-defense claim. Specifically, we found

that the PCRA court had improperly concluded that Burnett’s claim lacked

arguable merit but that a hearing was needed to determine whether counsel

had a reasonable basis for not pursuing a self-defense claim and whether

Burnett had been prejudiced by counsel’s failure to raise that defense. See

Commonwealth v. Burnett, 2662 EDA 2017 at 14 (Pa. Super. 2019).

Accordingly, we vacated the PCRA court’s order denying relief and remanded

for an evidentiary hearing on those two prongs of Burnett’s ineffectiveness

claim regarding self-defense.2

2 Burnett filed a petition for allowance of appeal to our Supreme Court, alleging

that this Court erred by finding that the PCRA court had properly denied his ineffectiveness claims regarding the jury instructions and the legality of his sentence. The Supreme Court denied the petition for allowance of appeal.

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The PCRA court held that hearing on March 5, 2020. Burnett’s trial

counsel testified at the hearing. According to trial counsel, he discussed raising

a self-defense claim with Burnett twice, once before trial and once during trial.

See N.T. PCRA Hearing, 3/5/20, at 5. Trial counsel recounted that Burnett

insisted that he did not have a gun on the night of the shooting and that it

was a case of misidentification. See id. at 6, 8, 9. According to counsel,

Burnett even accused counsel of “trying to throw him underneath the bus” by

trying to have him admit he had a gun and presenting a self-defense claim.

Id. at 6, 13. Trial counsel testified that Burnett instructed him not to pursue

a self-defense claim. See id. at 9.

Burnett also testified at the hearing, claiming that he had not spoken to

counsel in preparation for his trial “except for probably a week before trial”

and that they never had a conversation about self-defense. Id. at 17. He did

not assert at the hearing that he was acting in self-defense on the night of the

shooting. After the testimony concluded and as Burnett’s counsel began to

argue that trial counsel had been ineffective, the PCRA court stated:

Why would a lawyer [argue self-defense] if his client is telling him ‘I never had that gun. I couldn’t have been acting in self-defense in firing that gun because I never had that gun?’ Now he comes in today and testifies in front of me and still never says anything about self-defense. … I would think that if [Burnett’s] argument [was] valid, [Burnett] would have sat in that chair and explained the defense that he wanted [trial counsel] to present that [trial counsel] refused to present, and he didn’t. So, in terms of credibility, what story I accept, I really pretty much have to go with [trial counsel].

Id. at 28-29.

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The court then dismissed the petition for lack of merit, reiterating that

the court believed trial counsel and that counsel’s testimony made “total

sense.” Id. at 34. The court entered an order dismissing the petition that same

day, and Burnett filed a timely notice of appeal. The PCRA court issued an

order directing Burnett to file a 1925(b) statement. Counsel responded by

filing a statement pursuant to Pa.R.A.P. 1925(c)(4), notifying the court that

he intended to file a no-merit letter and petition to withdraw due to the lack

of any meritorious issues. In its Pa.R.A.P. 1925(a) opinion, the PCRA court

concluded that Burnett had waived all issues on appeal because he failed to

raise any issues in a Pa.R.A.P. 1925(b) statement. The appeal is now before

us.

As an initial matter, we disagree with the PCRA court that Burnett has

waived his issues on appeal because he did not file a Pa.R.A.P. 1925(b)

statement. Counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4), which

permits counsel to file a statement of intent to file a no-merit letter in lieu of

filing a Pa.R.A.P. 1925(b) statement without waiving any meritorious issues.

See Pa.R.A.P. 1925(c)(4); see also Commonwealth v. McBride, 957 A2d

752, 757 (Pa. Super. 2008) (stating that when the lower court issues a

directive that counsel file a Pa.R.A.P. 1925(b) statement, counsel may either

comply with that order or file a notice of intent to file a no-merit brief pursuant

to Pa.R.A.P. 1925(c)(4)). As such, the PCRA court improperly found in its

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Pa.R.A.P. 1925(a) opinion that Burnett’s issues were waived on appeal for

failure to file a Pa.R.A.P. 1925(b) statement.

As indicated in his Pa.R.A.P. 1925(c)(4) statement, counsel did, in fact,

file an application to withdraw from representation along with a no-merit letter

on appeal. This Court has clearly set forth the procedural prerequisites that

counsel must meet before being permitted to withdraw from representation

on collateral appeal. Counsel must file a Turner/Finley no-merit letter, and

that letter must detail counsel’s diligent review of the case, list the issue the

appellant wishes to be reviewed, explain why that issue lacks merit, and

request permission to withdraw. See Commonwealth v. Wrecks. 931 A.2d

717, 721 (Pa. Super. 2007).

In addition, counsel must send the appellant a copy of the no-merit

letter, a copy of the application to withdraw, as well as a statement advising

the appellant of his right to proceed with new counsel or pro se. See id. If

counsel meets these procedural prerequisites, this Court will then conduct its

own review of the merits of the appeal. See id. Only if we agree with counsel

that the issue lacks merits will we permit counsel to withdraw and deny relief.

See id.

Here, counsel has complied with the procedural prerequisites of

Turner/Finley. He filed an application to withdraw and a no-merit letter

detailing the nature of his review of the case, listing the issue sought to be

reviewed, i.e. whether counsel was ineffective for failing to raise a self-defense

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claim, explaining why that issue lacks merit, and requesting permission to

withdraw. See Anders Brief on Behalf of Appellant, 2/12/21; Application to

Withdraw as Counsel, 2/12/21. Counsel also sent Burnett a copy of the no-

merit letter and the application to withdraw, as well as a statement advising

Burnett of his right to proceed with new counsel or pro se. Because counsel

has complied with the necessary procedural prerequisites, we turn to Burnett’s

claim that counsel was ineffective for failing to argue that Burnett acted in

self-defense on the night of the shooting.

Counsel is presumed to have been effective. See Commonwealth v.

Brooks, 839 A.2d 245, 248 (Pa. 2003). In order to overcome that

presumption and prevail on a claim of ineffectiveness, Burnett must establish

that: (1) the underlying claim has arguable merit; (2) counsel had no

reasonable basis for his conduct; and (3) he was prejudiced by counsel’s

ineffectiveness. See id. A failure to establish any one of these three prongs

will defeat a claim challenging counsel’s effectiveness. See Commonwealth

v. Basemore, 744 A.2d 717, 738 n.23 (Pa. 2000).

Here, the PCRA court directly stated at the evidentiary hearing that it

credited counsel’s testimony that Burnett insisted that he did not have a gun

on the night of the shooting and, because of that, did not want counsel to

pursue a self-defense claim. We are bound by that credibility determination.

See Roney, 79 A.3d at 603. Given this determination, the court made it clear

that counsel had a reasonable basis for not arguing that Burnett had acted in

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self-defense - his client instructed him not to raise that defense. Moreover,

the court noted that counsel’s decision not to present a self-defense claim was

“understandable” in light of the fact that:

I mean, juries aren’t as understanding as lawyers to alternative arguments: My client never had that gun, but if he had the gun and if he shot at people, he did it in self-defense. That’s a difficult act to pull off in front of a jury.

N.T. PCRA Hearing, 3/5/20, at 28.

Burnett’s counsel agrees with the PCRA court, stating in his no-merit

letter that “it is difficult to argue that there was no reasonable basis for

counsel's action in this matter, so this issue does not have merit.” Anders

Brief on Behalf of Appellant at 12. We agree with both the PCRA court and

counsel that Burnett has not established that counsel had no reasonable basis

for failing to pursue a self-defense claim and that his ineffectiveness claim

therefore necessarily fails. See Basemore, 744 A.2d at 738 n.23. As such,

we affirm the PCRA court’s order denying Burnett’s PCRA petition and grant

counsel’s application to withdraw from representation.

Order affirmed. Application to withdraw from representation granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/23/2021

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