J-S16006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONALD BUTLER BURTON : : Appellant : No. 843 MDA 2021
Appeal from the PCRA Order Entered June 8, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005456-2009
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: JULY 7, 2022
This case has been before our Court multiple times. During the life of
this case, Ronald Butler Burton has had his direct appeal rights reinstated
nunc pro tunc and has been resentenced three times for, inter alia, conspiracy
to commit homicide and illegally possessing a firearm. After his judgment of
sentence resulting from the third resentencing was affirmed on direct appeal,
Burton filed a petition pursuant to the Post Conviction Relief Act, 42 Pa. C.S.A.
§§ 9541-9546. The Dauphin County Court of Common Pleas entered an order
denying Burton’s petition without holding an evidentiary hearing, and Burton
now appeals pro se from that order. In this appeal, Burton raises or attempts
to raise claims that his prior counsel were ineffective for failing to challenge
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* Retired Senior Judge assigned to the Superior Court. J-S16006-22
trial/appellate counsel’s representation in half a dozen ways. He alleges he
was entitled to an evidentiary hearing on all of his ineffectiveness claims, and
he also claims he was entitled to relief on the basis of exculpatory after-
discovered evidence pursuant to Pa.C.S.A. § 9543(a)(2)(vi). After review, we
find that none of these claims offer Burton any basis for relief, and we
therefore affirm.
Burton was arrested and charged with various offenses, including
homicide, after the police found Brandon Granthon bleeding from a gunshot
wound to the chest on Mulberry Street in Harrisburg in the early morning
hours of May 5, 2009. Granthon subsequently died from the wound. The
matter proceeded to a jury trial, at which Burton was represented by Jonathon
Crisp, Esq.
The Commonwealth presented several witnesses at trial, including
Preston Burgess. Burgess testified that he brokered a deal with Burton to sell
Granthon crack cocaine. The transaction took place on the evening of May 4,
2009. Burgess recounted that, shortly after the transaction, he recontacted
Burton because Granthon believed Burton had shorted Granthon on the
amount of crack Burton had sold him. Burgess testified that Burton agreed to
refund Granthon his money. According to Burgess, Burton came to Burgess’s
house and became angry when Granthon called Burgess and asked Burgess
to have Burton show him the refund money. Nonetheless, Burton left
Burgess’s house with a man named Slim in order to meet Granthon at an
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arranged spot near Burgess’s house. A few minutes after Burton left the
house, Burgess went to a nearby convenience store and heard a volley of
gunshots.
Jeffrey Lynch also testified as a witness for the Commonwealth. Lynch
stated that in the early morning hours of May 5, 2009, he was smoking crack
with a person known as “Jersey” near an alley close to Mulberry Street. He
recounted he saw two men in hoodies quickly walking down the alley, one of
which Lynch recognized as Burton, who had previously sold Lynch crack. Lynch
testified he then saw one of the men duck behind a car and the other behind
a telephone pole. He heard Burton say, “there he go.” N.T. Jury Trial, 1/25/11,
at 142. At that point, Lynch saw a third man dressed all in black walking by,
and, according to Lynch, the two men emerged from their hiding places and
ran after the third man. Concerned, Lynch began walking in the opposite
direction when he heard gunshots fired from different caliber guns. Lynch then
saw Burton and his companion run back down the alley and flee the area in a
SUV. Lynch later identified Burton from a photo array as one of the two men
he saw following the third. He also identified Burton at trial as the man he saw
and recognized in the alley.
Greta McCallister, the person known as “Jersey” who was smoking crack
with Lynch at the time in question, stated that she also saw two men in the
alley heading towards Mulberry Street. McCallister testified that each of the
two men had their hoods up and were carrying a gun. After the men left her
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line of vision, she heard gunshots, and afterwards, she saw the two men get
in a SUV and drive away. McCallister was not able to identify either one of the
two men.
Detective Ryan Neal of the Harrisburg Bureau of Police testified about
his investigation into the murder, and specifically what he discovered from
Burton’s and Granthon’s cell phone records. Those records showed that 26
calls were made between Granthon and Burton between May 4 and May 5,
2009, 17 of which occurred in the early morning hours of May 5, 2009.
Detective Donald Heffner, also of the Harrisburg Bureau of Police, testified
about the locations of those cell phone calls. According to Heffner, a call made
from Burton’s cell phone at 1:13 a.m. on May 5, 2009, could be approximated
to have originated less than half of a mile from the shooting.
Meanwhile, Burton did not deny that he sold crack to Granthon on May
4, 2009. Instead, the defense put forth by Burton was that he was not present
at the shooting, but that whoever did commit the killing had been justified in
using deadly force. See N.T. Voir Dire, Opening Statements and Closing
Arguments, 1/26/11, at 69-70 (opening remarks of defense counsel laying out
the defense and the alternative defense); id. at 71, 74, 65-86 (closing
remarks summarizing the defenses).
Trial counsel called Georgio Rochon to testify. Rochon stated that he
lived on Mulberry Street and at approximately one a.m. on May 5, 2009, he
heard gunshots and went to a screen door to see what was happening.
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According to Rochon, he saw a somewhat stocky, light-skinned Black male in
a hoodie. He was carrying a handgun and running in the alley from the
direction of Mulberry Street. Rochon testified that Burton was too tall, too
stocky and too dark to be the person he saw.
Following the three-day trial, the jury found Burton guilty of first-degree
murder, conspiracy, possession with intent to deliver, illegally possessing a
firearm, carrying a firearm without a license, and recklessly endangering
another person. The court sentenced him to, inter alia, life in prison on the
homicide charge.
Burton filed a notice of appeal, starting what this Court has described
as a “procedural quagmire.” See Commonwealth v. Burton, 1873 MDA
2016 (Pa. Super. July 26, 2017) (unpublished memorandum). In a decision
filed on January 20, 2012, our Court vacated Burton’s judgment of sentence
on the homicide charge and remanded for a new trial on that charge only. See
Commonwealth v. Burton, 385 MDA 2011 (Pa. Super. January 20, 2012)
(unpublished memorandum). In doing so, this Court found that although the
Commonwealth had presented sufficient evidence to disprove Burton’s
defense theory that the shooting had been justified, we also found that the
trial court erred in declining to charge the jury on unreasonable belief
voluntary manslaughter pursuant to 18 Pa.C.S.A. § 2503(b). In addition to
vacating the homicide sentence, this Court also vacated the sentences on
Burton’s remaining five convictions on the basis that the decision risked
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altering the trial court’s overall sentencing scheme. We remanded for
resentencing on those five convictions.
The Commonwealth elected not to retry Burton for the homicide charge.
On March 30, 2012, the trial court resentenced Burton on the remaining five
convictions, but because Burton’s petition for allowance of appeal from this
Court’s January 20, 2012 decision was still pending, that sentence was
declared a nullity. See Commonwealth v. Burton, 1936 MDA 2012 at * 3
(Pa. Super. July 26, 2013) (unpublished memorandum). The Supreme Court
thereafter denied the petition for allowance of appeal and the trial court once
again resentenced Burton, this time to an aggregate sentence of 22 ½ to 50
years’ incarceration. Burton appealed. This Court affirmed the judgment of
sentence after concluding that Burton had not preserved his claims
challenging the discretionary aspects of sentence at the resentencing hearing
or in a post-sentence motion. See id. at * 5. Attorney Crisp continued to
represent Burton throughout this direct appeal process.
On March 27, 2014, Burton filed a pro se PCRA petition seeking
reinstatement of his right to file a post-sentence motion nunc pro tunc.
Counsel was appointed, but Burton subsequently retained private counsel,
Theodore Tanski, Esq., and Tanski filed a supplemental PCRA petition in
December 2014. The PCRA court entered an order on February 10, 2015,
granting the petition in part and denying it in part. The court granted the
petition insomuch as it granted Burton leave to file a post-sentence motion
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nunc pro tunc. It denied the remainder of the petition, finding that Burton’s
other claim in the PCRA petition, that he was entitled to relief on the basis of
the allegedly after-discovered evidence of two other eyewitness statements,
was meritless.
On March 10, 2015, Burton filed a post-sentence motion with the trial
court and also filed a notice of appeal from the February 10, 2015 order.
Attorney Tanski was permitted to withdraw, and the trial court appointed
appellate counsel, Jennifer Tobias, Esq. On appeal, this Court affirmed the
part of the PCRA court’s February 10, 2015 order restoring Burton’s direct
appeal rights nunc pro tunc. See Commonwealth v. Burton, 457 MDA 2015
at *9 (Pa. Super. March 10, 2016) (unpublished memorandum). However, we
vacated the remainder of that order on the basis that once the PCRA court
reinstated Burton’s direct appeal rights, it no longer had jurisdiction to address
the merits of any remaining claims. See id. at *7. We also quashed the appeal
to the extent that it purported to challenge the disposition of the post-
sentence motion, as the motion was still pending in the trial court. See id. at
* 9.
Burton’s post-sentence motion was denied by operation of law. Burton
filed a direct appeal, but subsequently withdrew that appeal. See Praecipe for
Discontinuance, 636 MDA 2016, 5/27/16 (single page). The trial court,
pursuant to Burton’s request, ordered a pre-sentence investigation (“PSI”)
report for the first time. With the benefit of that PSI report, the trial court
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resentenced Burton to an aggregate term of 22 ½ to 45 years’ incarceration.
This Court affirmed the judgment of sentence after rejecting Burton’s three
claims challenging the discretionary aspects of that sentence. See Burton,
1873 MDA 2016 (Pa. Super. July 26, 2017) (unpublished memorandum). Our
Supreme Court denied Burton’s petition for allowance of appeal.
Burton filed a timely pro se PCRA petition, alleging three claims of prior
counsels’ ineffectiveness.1 Appointed counsel, Shannon Sprow, Esq., filed a
supplemental PCRA petition. The supplemental petition maintained that
although two of Burton’s claims in his pro se PCRA petition were meritless, his
third claim warranted relief. The PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss the petition without a hearing, and subsequently
dismissed the petition. Burton filed this appeal and sought to proceed pro se.
1 The PCRA court found that although Burton’s PCRA petition was filed two days after the one-year deadline under the PCRA, it was timely under the prisoner mailbox rule. See Trial Court Opinion, 12/29/20, at 8. We see no error in this conclusion. While there is no envelope in the record showing the postmark of when the prison authorities mailed Burton’s petition, both the petition and certificate of service are dated before the applicable deadline. Additionally, the petition was filed only two days after the applicable deadline, which allows for the presumption that it was mailed before the deadline, especially “[g]iven the inherent delays associated with mail delivery.” Commonwealth v. Betts, 240 A.3d 616, 619 n.5 (Pa. Super. 2020) (finding that a pro se filing was timely when the certificate of service attached to the filing was dated before the filing’s deadline and the filing was received only two days after the deadline).
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Following a Grazier2 hearing, the court granted his request. Burton then filed
his pro se brief with this Court alleging, inter alia, that the PCRA court erred
in dismissing his PCRA petition and that, at the very least, he was entitled to
an evidentiary hearing.
Our review of an order dismissing a PCRA petition is limited to examining
whether the PCRA court’s determinations are supported by the record and the
court’s decision is free of legal error. See Commonwealth v. Shaw, 217
A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the
factual findings of the PCRA court and will not disturb those findings unless
they have no support in the record, we apply a de novo standard of review to
the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147
A.3d 915, 919 (Pa. Super. 2016).
Further, the PCRA court is not required to hold an evidentiary hearing
prior to dismissing a petition as a petitioner is not entitled to a PCRA hearing
as a matter of right. See Shaw, 217 A.3d at 269. 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.” Id.
2 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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We address Burton’s underlying claims of trial/appellate counsel’s3
ineffectiveness first. To be eligible for relief under the PCRA, Burton must
show, as a threshold matter, that his allegations have not been waived. An
allegation is deemed waived if Burton “could have raised it but failed to do so
before trial, at trial, during unitary review [or] on appeal.” 42 Pa. C.S.A. §
9544(b). To avoid a finding of waiver here, Burton presents, as he must,
layered claims of ineffective representation. To that end, Burton avers that all
prior counsel were ineffective for failing to challenge trial/appellate counsel’s
representation in the following ways: 1) failing to object to the jury
instructions on the illegal possession a firearm charge; 2) failing to request a
bifurcated trial; 3) failing to object to the jury instructions on accomplice
liability; 4) failing to investigate and call certain witnesses; and 5) failing to
challenge all of his convictions on direct appeal.
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, Burton 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, i.e. there is a reasonable probability that because of the act
3 As noted above, Attorney Crisp represented Burton both at trial and on his first and second direct appeal.
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or omission in question, the outcome of the proceeding would have been
different. See id.4
Burton addresses his first two allegations of ineffectiveness together,
which both relate to his illegal possession of a firearm conviction. In these two
claims, Burton argues that all prior counsel were ineffective for failing to raise
a claim challenging trial counsel’s failure to object to the jury instruction on
illegal possession of a firearm as well as to request a bifurcated trial on the
illegal possession charge. His arguments in support of these contentions are
less than clear. He does, however, repeatedly make the summary allegation
that counsel’s inactions unduly prejudiced him. We do not agree, and instead
find that neither of these claims offer Burton any basis for relief.
One of the charges Burton faced at trial was the illegal possession of a
firearm pursuant to 18 Pa. C.S.A. § 6105.5 To prove Burton was guilty of
Section 6105, the Commonwealth needed to prove Burton possessed a firearm
4When a petitioner raises a layered ineffectiveness claim, our Supreme Court has stated that the petitioner must present an argument on the three prongs of the ineffectiveness test as to each layer of representation. See Commonwealth v. Mason, 130 A.3d 601, 619 (Pa. 2015). While Burton’s brief is far from a model of how this should be done, we find he has presented sufficient argument regarding the three prongs so as to avoid a finding of waiver and allow for consideration of the merits of his claims. We note that when doing so, if trial counsel is found not to have been ineffective, subsequent counsel will not be deemed ineffective for failing to raise a claim regarding trial counsel’s representation. See Commonwealth v. Fletcher, 986 A.2d 759, 785 (Pa. 2009). 5Section 6105’s full title is “Persons not to possess, use, manufacture, control, sell or transfer firearms.” 18 Pa. C.S.A. § 6105.
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and that he had previously been convicted of one of 38 enumerated offenses,
including aggravated assault, that prohibits him from possessing a firearm.
See Commonwealth v. Miklos, 159 A.3d 962, 967 (Pa. Super. 2017); 18
Pa. C.S.A. § 6105(b).
Prior to trial, defense counsel stipulated that Burton had a prior
conviction which made it illegal for him to possess a firearm under Section
6105. See N.T. Jury Trial, 1/24/11, at 7-8. The Commonwealth agreed to the
stipulation. See id. at 7. The parties then agreed - and the trial court clarified
- that there would not be any mention at trial of the specific offense for which
Burton had been convicted - aggravated assault - that made him ineligible to
possess a firearm. See id. at 8. The parties also agreed that the only issue
for the jury to decide for purposes of the Section 6105 charge would be
whether Burton actually possessed a firearm. See id.
On appeal, Burton does not contend that he does not, in fact, have an
aggravated assault conviction or that such a conviction does not make him
ineligible to possess a firearm under Section 6105. Nor does he point to any
place in the record where the parties made any reference to the aggravated
assault conviction at trial or elicited any testimony about that conviction.
Instead, Burton first argues that he was prejudiced by counsel’s failure to
object to the court’s charge on illegal possession of a firearm, in which the
court told the jury:
THE COURT: … The defendant is charged with former convict prohibited from having a firearm. The defendant has been charged
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with former convict - to find the defendant guilty of this offense you must find the following elements have been proven beyond a reasonable doubt:
That the defendant was a person prohibited by law from possessing, using, controlling, selling, transferring, manufacturing or obtaining a license to possess, use, control, sell, transport or manufacture a firearm.
To be prohibited, the Commonwealth must show that the defendant at the time of this conduct had been convicted -
[PROSECUTOR]: I believe, Your Honor, that we -
THE COURT: - had been convicted of a crime under the statute, and the defendant on a date more than 60 days from the time he became a person prohibited by law from possessing, using, controlling, selling, transferring, manufacturing or obtaining a license to possess, use, control, sell, transfer or manufacture a firearm knowingly possessed or used or sold or transferred or manufactured or obtained a license to possess and use a firearm.
N.T. Jury Trial, 1/26/11, at 384-385.
Burton summarily asserts that he was unfairly prejudiced by counsel’s
failure to object to this instruction. However, as the PCRA court found and the
Commonwealth argues, Burton suffered no such prejudice given that the trial
court did not, “in what can only be assumed to have been an error by
omission,” even mention the stipulation, much less the underlying conviction,
during the instruction. Commonwealth’s Brief at 9. As such, the jury “never
heard that [Burton] had a prior conviction that made him ineligible to possess
a firearm.” Id. There was no testimony about the prior conviction and it was
not mentioned during the instruction. Given these circumstances, we fail to
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see any error in the PCRA court’s conclusion that Burton was not prejudiced
by counsel’s failure to object to this instruction.
To the extent Burton argues he was unfairly prejudiced by this charge
because the court used “former convict prohibited from having a firearm” as
opposed to “person not to possess a firearm,” this Court has previously
rejected a similar claim. In Commonwealth v. Antidormi, we held that a
defendant is not prejudiced by a trial court’s use of the term “felon not to
possess a firearm” as opposed to “person not to possess a firearm.” 84 A.3d
736, 754 (Pa. Super. 2014). We explained that:
this Court has utilized the terms ‘felon not to possess a firearm’ and ‘person not to possess a firearm’ interchangeably to refer to identical conduct. Therefore, the terms … refer, interchangeably, to the Commonwealth’s charge that, as a felon, [a defendant] illegally possessed a firearm.
Id. at 753 -754 (citations omitted).
The same reasoning applies to Burton’s claim here, given that a former
version of Section 6105 was titled “Former convict not to own a firearm, etc.”
See 18 Pa.C.S.A. § 6105 (effective June 6, 1973, subsequently amended June
13, 1995); see also Commonwealth v. Gillespie, 821 A.2d 1221, 1224 (Pa.
2003) (stating that the “clear purpose of § 6105 is to protect the public from
convicted criminals who possess firearms”). We therefore reject any
contention that counsel was ineffective for failing to object to the instruction
because of the court’s use of the term “former convict.”
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Burton also claims counsel should have requested a bifurcated trial on
the illegal possession of a firearm charge. Although not entirely clear, it
appears Burton is contending that counsel should have made such a request
because of the “spillover prejudice” that occurred from the jury knowing that
Burton was previously convicted of aggravated assault for purposes of the
illegal possession charge when considering their verdict on the other five
offenses. However, as explained above, counsel stipulated to the fact that
Burton had a qualifying conviction and the parties agreed not to mention the
specific offense underlying that conviction. Burton has not pointed to any place
in the record where the jury heard anything about the aggravated assault
conviction. We fail to see how this caused any “spillover prejudice” to Burton
or how counsel’s failure to request a bifurcated trial in light of the stipulation
constituted ineffectiveness.6
6 Burton also tacks on a claim that trial counsel was ineffective for stipulating to the fact that Burton had an aggravated assault conviction. In the first place, this claim is not presented in Burton’s statement of questions and it is waived for that reason. See Pa. R.A.P. 2116(a). Even if we were to overlook waiver, we note that, as explained above, Burton does not dispute that he had this conviction and that this conviction made him ineligible to possess a firearm. We fail to see how counsel’s stipulation prejudiced him under the circumstances present here, where it appears the jury did not even hear of the stipulation, much less the specific offense (aggravated assault) underlying the stipulation. And see Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa. 2014) (holding that a defendant does not suffer unfair prejudice merely by the admission of his certified conviction for a specific, identified, predicate offense offered to prove the prior conviction element of Section 6105). Burton simply does not offer any persuasive argument to the contrary.
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Next, Burton maintains all prior counsel were ineffective for failing to
argue trial counsel was ineffective for failing to object to the homicide charge
based on accomplice liability. First of all, trial counsel did object to the court’s
instruction. See N.T., 1/27/11, at 417-418. Moreover, Burton does not explain
what relief he hopes to secure by challenging counsel’s representation in
regards to his homicide conviction given that this Court has already vacated
that conviction. No relief is due.
Burton also asserts all prior counsel were ineffective for neglecting to
raise trial counsel’s ineffectiveness for failing to investigate and call Fred Jones
as a witness at his trial. According to Burton, he received a post-trial
statement from Jones reporting that Jones had been with Lynch on the night
of the shooting and had seen a man running away from the scene of the crime
that did not look like Burton. Burton contends that had counsel called Jones
to the stand and allowed the jury to hear his testimony, this would “have
established the reasonable doubt necessary for an acquittal.” Appellant’s Brief
at 48. This claim fails for several reasons.7
7 The PCRA court found that this claim was previously litigated because it had been included in Attorney Tanski’s supplemental PCRA petition and the PCRA court rejected the claim. The supplemental PCRA petition did not frame this issue as one of ineffectiveness but rather, one of after-discovered evidence. In any event, this Court effectively found on appeal that the PCRA court did not have jurisdiction to reach the issue based on Jones’s statement after the PCRA court granted nunc pro tunc relief. Therefore, although the issue is not previously litigated, see Pa.C.S.A. § 9544(a), we agree with the PCRA court that it does not provide a basis for relief. See Commonwealth v. Price, 876 (Footnote Continued Next Page)
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In the first place, it does not appear from the record that Burton
attached any statement by Jones to his PCRA petition, as required by 42 Pa.
C.S.A. § 9545 (d)(1)(i) and Pa.R.Crim.P. 902(A)(15). Nor does Burton assert
PCRA counsel was ineffective for failing to attach the statement. Burton does
attach a hand-written statement, dated July 23, 2012, signed by a person
named Jones, as an exhibit to his appellate brief. However, this statement is
not verified, and it also does not provide Jones’s address or date of birth as
required by 42 Pa. C.S.A. § 9545 (d)(1)(i) and Pa.R.Crim.P. 902(A)(15).
Nonetheless, even if Burton had complied with these procedural
requirements, we would not find this claim entitles him to any relief. Burton
claims that counsel should have called Jones to the stand because, according
to Jones’s statement, Jones could have definitively established that Burton
was not present at the scene of the crime. The statement reads in relevant
part:
I was out there with crackhead Jeff [Lynch]. … I know for a fact it wasn’t you cuz the dude that ran outta the alley … was a light skinned dude with a gr[a]y hoodie on. And you’re Black as fuck.
Appellant’s Brief, Exhibit C.
In making his argument, Burton does not cite the standard applicable
to claims alleging counsel's ineffectiveness for failing to call a witness to
A.2d 988, 993 (Pa. Super. 2005) (stating that this Court may affirm a PCRA court’s denial of relief on a different basis than that provided by the PCRA court).
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testify. To prove such a claim, Burton must show that: 1) Jones existed; 2)
counsel was aware or should have been aware of Jones’s existence; 3) Jones
was willing and able to cooperate on behalf of Burton; and 4) the absence of
the proposed testimony prejudiced him. See Commonwealth v. Johnson,
139 A.3d 1257, 1284 (Pa. 2016).
Even if Burton was able to show the first three elements of this
standard,8 we do not find he has established he was prejudiced by any failure
to call Jones to the stand. Burton asserts that Jones’s statement “completely
removes [Burton] from any crime.” Appellant’s Brief at 44. He fails to explain,
however, how the statement accomplishes that in light of the fact that Lynch
and McCallister each testified that they saw two men, and Jones described
only one of those two men.
In any event, Jones’s proposed testimony regarding the description of
the person he saw on the night of the shooting would have merely been
cumulative of the description given by Rochon. As such, Burton cannot show
prejudice and his ineffectiveness claim necessarily fails. See Johnson, 139
A.3d at 1284 (holding that Johnson had not suffered prejudice for purposes of
his claim that counsel had been ineffective for failing to call witnesses, when
8 Burton asserts trial counsel should have been aware of Jones. However, in his next claim, Burton asserts that Jones’s statement constitutes after- discovered evidence, which requires him to show that the evidence could not have been obtained prior to trial by the exercise of due diligence. He cannot, of course, have it both ways.
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those witnesses’ proposed testimony that Johnson was not present at the
crime scene would have simply been cumulative of the testimony of other
witnesses); Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008)
(stating that trial counsel will not be found ineffective for failing to call a
witness whose testimony is merely cumulative of that of other witnesses).9
Burton also alleges he is entitled to relief on the basis of two statements,
including Jones’s, because they constitute after-discovered exculpatory
evidence pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi). The PCRA court did not
address this issue, as it was not included in Burton’s pro se PCRA petition or
counsel’s supplemental petition. To the extent Burton claims on appeal his
PCRA counsel was ineffective for failing to raise this issue, a recent decision
by our Supreme Court allows us to review this claim. See Commonwealth
v. Bradley, 261 A.3d 381 (Pa. 2021) (holding that a PCRA petitioner may,
after a PCRA court denies relief, and when acting pro se on appeal from that
denial, raise claims of PCRA counsel’s ineffectiveness on appeal).
Burton claims that prior counsel, including PCRA counsel, were
ineffective for failing to raise the claim that Jones’s statement and the
statement of Avery McCraw, which McCraw also provided after Burton’s trial,
9 In his PCRA petition, Burton also claimed counsel was ineffective for failing to call three other witnesses: Kristina Brandt, Erica Pannebaker and Sandra Miller. He abandons this claim on appeal.
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were both after-discovered evidence that entitled him to relief pursuant to 42
Pa.C.S.A. § 9543(a)(2)(vi).10 In the hand-written letter attached as an exhibit
to Burton’s brief, McCraw contends he was near the spot Granthon was
murdered at the time of the murder. The statement seems to be missing some
parts, perhaps even a page, but in essence McCraw maintains that he saw
someone dressed all in black speed walking down Mulberry Street, and also
saw a man in a gray-hooded sweatshirt with a gun in his hand. Neither this
statement nor Jones’s statement offers Burton relief as after-discovered
evidence.
To obtain relief based on after-discovered evidence, Burton must show
the evidence: 1) could not have been obtained prior to the conclusion of trial
by the exercise of reasonable diligence; 2) is not merely cumulative or
corroborative; 3) will not be used solely to impeach a witness’s credibility; and
4) is of such a nature that a different verdict will likely result if a new trial is
granted. See Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super.
2012).
Here, in rejecting Burton’s contention of after-discovered evidence as
raised in Burton’s 2014 supplemental PCRA petition, the PCRA court stated:
10 Burton acknowledges that Attorney Tanski raised this issue in the supplemental PCRA petition he filed on behalf of Burton, but Burton essentially seems to argue subsequent counsel improperly abandoned the issue after this Court held the PCRA court did not have jurisdiction to reach it. Separately, we also note that, although Burton uses the last name “McGraw,” the name on the statement is “McCraw.”
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In the present case, two affidavits submitted by counsel indicate that there were two additional witnesses the night of the homicide. Avery McCraw sent [Burton] and his attorney at the time a letter on October 26, 2011. Subsequently, he verified the statement pursuant to 18 Pa.C.S. § 4904. A second letter by Fred Jones was received on July 23, 2012. It is not verified.
[Burton] must prove by a preponderance of the evidence that this evidence is not cumulative. Mr. McCraw’s letter indicates he saw a man in black on the street at the time of the shooting. Jeffrey Lynch testified that he saw [a man] in black on the street at the time of the shooting. Mr. Jones’s letter indicated he saw a ‘light skinned dude.’ Again, during trial, Georgio [ ] Rochon, [Burton’s] own witness, testified that the person he saw at the scene of the murder was a “light-complected [B]lack man” and not [Burton]. Nothing in the letters/affidavits indicates any newly discovered evidence that was not presented to the jury.
Trial Court Opinion, 457 MDA 2015, 2/10/2015, at 4 (unpaginated) (citations
and footnote omitted.)
While we found on appeal that we could not review this determination
because the PCRA court did not have jurisdiction to decide this claim after it
granted nunc pro tunc relief, see Burton, 457 MDA 2015 at * 7, we face no
such impediment here. We see no error in the PCRA court’s conclusion that
the allegedly after-discovered evidence offered by Burton was merely
cumulative of evidence presented at trial. We add only that McCraw’s
allegation that he saw a man in a gray-hooded sweatshirt with a gun at the
scene of the murder was substantially cumulative of testimony provided by
Lynch, McCallister and Rochon. No relief is due. See Foreman, 55 A.3d at
537.
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In his final ineffectiveness claim, Burton alleges prior counsel were
ineffective for failing to raise trial/appellate counsel’s failure to appeal all of
his convictions on direct appeal. He acknowledges that counsel challenged his
homicide and conspiracy convictions on appeal, and that his homicide
conviction was in fact vacated, but he asserts counsel should have also
appealed the four other convictions. He maintains counsel’s failure in this
regard requires the restoration of his direct appeal rights nunc pro tunc. This
claim fails.
In support of his contention, Burton cites only to cases which stand for
the proposition that a petitioner is entitled to nunc pro tunc relief when counsel
has completely deprived the petitioner of any opportunity to appeal his
judgment of sentence by failing to pursue or perfect a requested direct appeal.
See, e.g., Commonwealth v. Champney, 783 A.2d 837, 841 (Pa. Super.
2001) (holding trial counsel was ineffective for failing to file a requested notice
of appeal, leaving the petitioner without any opportunity to appeal and
entitling him to nunc pro tunc relief). This is not the situation here. Instead,
trial/appellate counsel filed a direct appeal on behalf of Burton raising seven
issues, two of which this Court found had merit. Therefore, Burton has simply
not shown that any request he made of counsel to file a direct appeal was
ignored or rejected by counsel, as he was required to do. See
Commonwealth v. Maynard, 900 A.2d 395, 397-398 (Pa. Super. 2006)
(when making a claim that counsel was ineffective for failing to file a direct
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appeal, the petitioner must plead and prove that he requested counsel to file
a direct appeal on his behalf and counsel ignored or rejected that request).
Moreover, as the PCRA court found, Burton’s direct appeal raised the
claim that the verdict - in its entirety - was against the weight of the evidence.
The PCRA court noted that Burton’s appellate brief specifically stated that the
“jury verdict finding [Burton] guilty on the above referenced charges was so
contrary to the weight of the evidence presented at trial that a new trial is
required.” Appellant’s Brief, 385 MDA 2011, 7/15/11, at 12. This Court
considered, and rejected, this claim before granting Burton a new trial on the
basis of one of the other claims raised by counsel. Based on all of these
circumstances, Burton has failed to show the PCRA court erred by concluding
this final claim of ineffectiveness does not warrant any relief.
Burton’s last two issues are that he is entitled to relief because of the
cumulative prejudicial effect of counsel’s alleged errors and that he was
entitled to an evidentiary hearing on his ineffectiveness claims. Both of these
claims fail. See Commonwealth v. Tedford, 960 A.2d 1, 56 (Pa. 2008)
(citation omitted) (“[N]o number of failed claims may collectively warrant
relief if they fail to do so individually.”); Commonwealth v. Jones, 942 A.2d
903, 906 (Pa. Super. 2008) (stating that no hearing is necessary if it can be
determined without a hearing that any one of the three prongs of the
ineffectiveness test cannot be met). As such, no relief is due on any of the
claims raised by Burton.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/7/2022
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