Com. v. Carmichael, I.

• Court: Superior Court of Pennsylvania
• Decided: July 18, 2023
• Docket: 1824 EDA 2021
• Status: Unpublished

Opinion

J-A10014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ISAAC CARMICHAEL : : Appellant : No. 1824 EDA 2021

Appeal from the PCRA Order Entered August 13, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008846-2013

BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED JULY 18, 2023

Isaac Carmichael appeals from the order dismissing his first petition for

relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42

Pa.C.S.A. §§ 9541-9546. Carmichael argues that his counsel was ineffective

for failing to file a habeas corpus motion after the preliminary hearing, file a

Pa.R.Crim.P. 600 motion, properly cross-examine the victim, and object to the

introduction of a surveillance video; the evidence was insufficient to support

his convictions; the verdict was against the weight of the evidence; and the

sentence was illegal and the trial court failed to consider various factors,

including Carmichael’s rehabilitative needs, in imposing the sentence. We

affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A10014-23

On June 2, 2013, Carmichael shot a gun multiple times at people at the

intersection of 6th and South Streets in Philadelphia. Sergeant Dominick Cole

and Officer Matthew White responded to the scene. Thereafter, Carmichael

fired a shot at the responding officers. The officers chased Carmichael down,

arrested him, and charged him with numerous crimes, including aggravated

assault and assault of a law enforcement officer arising out the shot fired

toward Sergeant Cole.1

The charges were held for court on July 10, 2013. Subsequently, on

September 16, 2013, Carmichael filed a motion to continue based upon his

counsel’s lack of availability. The matter was continued until September 23,

2013, when a pre-trial conference was held. On October 10, 2013, Carmichael

again sought a continuance for a possible “non-trial disposition.” The matter

was continued until November 18, 2013. Carmichael then sought a

continuance on November 19, 2013, to obtain a psychiatric evaluation to

determine whether he was competent to testify. On June 9, 2014, at a status

conference, Carmichael sought another continuance to hire an expert for a

mental health evaluation. To complete this evaluation, Carmichael requested,

and the trial court granted, multiple continuances until June 11, 2015.

1 The Commonwealth charged and convicted Carmichael with multiple other offenses at case number CP-51-CR-0008845-2013, but Carmichael did not appeal those convictions. Carmichael only appealed his judgment of sentence and filed the instant PCRA petition from the convictions relating to Sergeant Cole.

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The matter proceeded to a jury trial on June 15, 2015. Notably, a

security camera video, which captured certain aspects of the incident, was

admitted at trial. The jury found Carmichael guilty of aggravated assault and

assault of a law enforcement officer. Ultimately, the trial court sentenced

Carmichael to 20 to 40 years in prison for the assault of a law enforcement

officer and a concurrent prison term of 5 to 10 years for the aggravated assault

conviction. This Court affirmed the judgment of sentence, and our Supreme

Court denied allowance of appeal. See Commonwealth v. Carmichael, 433

EDA 2016 (Pa. Super. filed Feb. 9, 2018) (unpublished memorandum), appeal

denied, 189 A.3d 389 (Pa. 2018).

In June 2019, Carmichael, pro se, filed a timely PCRA petition, and

following the appointment of counsel, an amended PCRA petition. The PCRA

court held an evidentiary hearing, after which it dismissed Carmichael’s PCRA

petition. This timely appeal followed.

On appeal, Carmichael raises the following questions for our review:

1. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish that trial counsel was ineffective for failing to protect [Carmichael’s] constitutional rights to a speedy trial, his right to adequately confront the witnesses against him, and his procedural and substantive due process rights[?]

2. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish violations of [Carmichael’s] constitutional rights under the United States and Pennsylvania Constitutions[?]

3. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish

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that the trial court issued an illegal sentence by imposing a sentence in excess of the statutory maximum based on the evidence presented at trial, and because the court did not consider the protection of the public, the gravity of the offense as it relates to the victim and the community, the rehabilitative needs of [Carmichael], and the sentencing guidelines[?]

Appellant’s Brief at 8.

Our standard of review regarding a PCRA court’s order “is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super.

2017). “The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.” Commonwealth v. Garcia,

23 A.3d 1059, 1061 (Pa. Super. 2011) (citation omitted).

In his first claim, Carmichael raises four distinct ineffective assistance

of trial counsel claims. See Appellant’s Brief at 13-16. To succeed on an

ineffectiveness claim, Carmichael must demonstrate by a preponderance of

evidence that “(1) the underlying claim has arguable merit; (2) counsel had

no reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice as a result of counsel’s action or inaction.”

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018) (citation omitted).

Counsel is presumed to be effective, and the burden is on Carmichael to prove

otherwise. See Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

A failure to satisfy any prong of the test for ineffectiveness will require

rejection of the claim. See Commonwealth v. Montalvo, 244 A.3d 359, 368

(Pa. 2021).

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We will address each of Carmichael’s claims in turn. First, Carmichael

contends that trial counsel failed to file a habeas corpus motion after the

preliminary hearing. See Appellant’s Brief at 14. Carmichael argues that trial

counsel’s failure satisfied the “arguable merit and reasonableness

requirements.” Id. Carmichael asserts that the failure to file this motion

established his due process rights were violated. See id. According to

Carmichael, he was prejudiced by counsel’s failure because it adversely

affected the outcome of the trial. See id. at 16.

Here, Carmichael cites the three prongs of the ineffectiveness test and

merely provides conclusory statements that counsel was ineffective. See

Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (“[B]oilerplate,

undeveloped” arguments regarding ineffective assistance of counsel are

“insufficient to establish an entitlement to post-conviction relief.” (citation

omitted)). In fact, Carmichael fails to support his argument with citation to

and discussion of relevant case law. “When an appellant cites no authority

supporting an argument, this Court is inclined to believe there is none.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa. Super. 2015)

(citing Pa.R.A.P. 2119(a), which requires the appellant to discuss and cite to

pertinent authorities). Therefore, Carmichael waived this ineffectiveness

claim. See Commonwealth v. Paddy, 15 A.3d 431, 444 (Pa. 2011) (stating

that when an appellant fails “to set forth all three prongs of the ineffectiveness

test and [to] meaningfully discuss them, he is not entitled to relief, and we

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are constrained to find such claims waived for lack of development”) (citation

omitted)). In any event, Carmichael cannot establish prejudice, as any issues

arising from a pre-trial petition for habeas corpus become moot once the

defendant has been convicted. See Commonwealth v. Jacobs, 640 A.2d

1326, 1330 (Pa. Super. 1994).

Next, Carmichael argues that trial counsel was ineffective for not filing

a motion to dismiss his case based on a violation of Pa.R.Crim.P. 600, noting

that he waited over two years before his case proceeded to trial. See

Appellant’s Brief at 14, 16. Carmichael highlights that the trial court found the

various continuances to have been requested by the defense. See id. at 14.

Carmichael baldly claims he did not agree with counsel seeking the

continuances. See id.

Pertinently, Rule 600 provides that “[t]rial in a court case in which a

written complaint is filed against the defendant shall commence within 365

days from the date on which the complaint is filed.” Pa.R.Crim.P.

600(A)(2)(a). Further, “periods of delay at any stage of the proceedings

caused by the Commonwealth when the Commonwealth has failed to exercise

due diligence shall be included in the computation of the time within which

trial must commence,” while “[a]ny other periods of delay shall be excluded

from the computation.” Pa.R.Crim.P. 600(C)(1). “[T]he Commonwealth is

required to demonstrate that it acted with due diligence during a time period

before that period can be deemed excludable.” Commonwealth v. Harth,

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252 A.3d 600, 617 (Pa. 2021). “Due diligence is fact-specific, to be determined

case-by-case; it does not require perfect vigilance and punctilious care, but

merely a showing the Commonwealth has put forth a reasonable effort.”

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). However, in

the context of a PCRA petition alleging ineffective assistance of counsel, the

burden lies on Carmichael to establish that the Commonwealth did not

exercise due diligence. See Commonwealth v. Wiggins, 248 A.3d 1285,

1289 (Pa. Super. 2021).

Here, in Carmichael’s single paragraph argument, he does not establish

that the Commonwealth failed to exercise due diligence when he sought the

continuances. See id. at 1290-91 (noting that appellant’s failure to establish

that the Commonwealth did not exercise due diligence demonstrated that

counsel was not ineffective by neglecting to file a Rule 600 motion).

Carmichael merely opines he did not agree with the continuances without

providing any proof supporting his claim. Based upon the paucity of his

ineffectiveness claim, we conclude that this claim is waived.

Carmichael also contends that trial counsel was ineffective for failing to

object to the introduction of the surveillance video at trial. See Appellant’s

Brief at 15. Carmichael asserts the video was introduced in violation of the

best evidence rule. See id. Carmichael claims that he established the three

prongs of the ineffectiveness test. See id. at 15, 16.

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Again, Carmichael merely raises bald allegations of trial counsel’s

ineffectiveness and fails to satisfy any of the three prongs of the

ineffectiveness test for counsel. Accordingly, we conclude that Carmichael’s

trial counsel ineffectiveness claim in this regard is waived. See Paddy, 15

A.3d 431, 444; Spotz, 896 A.2d at 1250.

Finally, Carmichael asserts that trial counsel was ineffective for failing

to properly cross-examine Sergeant Cole. See Appellant’s Brief at 15, 16.

According to Carmichael, counsel failed to develop the record to place

Sergeant Cole’s credibility in question. See id. at 15. Carmichael claims that

counsel should have asked Sergeant Cole if Carmichael looked in his direction

or heard Sergeant Cole identify himself, which would have helped establish

that he did not know he was shooting at a police officer. See id. Carmichael

further alleges counsel failed to recall Sergeant Cole during his defense,

despite Carmichael’s pleas to do so. See id.

At trial, Carmichael’s trial counsel cross-examined Sergeant Cole. See

N.T., 6/16/15, at 85-100. Specifically, trial counsel asked Sergeant Cole

whether Carmichael turned around and saw him during the chase, to which

Sergeant Cole stated no. See id. at 89. Trial counsel elicited testimony from

Sergeant Cole that he yelled “stop police,” and that Carmichael was about one

car length in front of Sergeant Cole. See id. at 90. Additionally, under cross-

examination, Sergeant Cole conceded there were a row of cars between him

and Carmichael when Carmichael shot his gun and that he did not see where

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the shot went. See id. at 90-91; see also id. at 94 (wherein Sergeant Cole

admitted that he did not see Carmichael with a gun but saw a muzzle flash).

Here, because trial counsel cross-examined Sergeant Cole and attacked

his credibility, we conclude that Carmichael’s underlying ineffectiveness claim

lacks merit. See Commonwealth v. Dennis, 715 A.2d 404, 408-09 (Pa.

1998) (stating that trial counsel was not ineffective in failing to impeach a

witness on specific grounds, where trial counsel adequately cross-examined

the witness on other matters). Moreover, Carmichael does not establish that

further cross-examination would have been helpful in disproving the

Commonwealth’s case or rebutting Sergeant Cole’s testimony. In fact,

Carmichael merely speculates that trial counsel’s examination of Sergeant

Cole would have changed the result of the trial. See Spotz, 896 A.2d at 1216

(noting that a petitioner cannot rely on mere conjecture and speculation to

establish a claim of ineffectiveness). Therefore, we conclude that trial counsel

did not render ineffective assistance, and Carmichael is not entitled to relief

on any of his sub-claims of ineffective assistance of trial counsel.

Next, Carmichael asserts that the evidence was insufficient to support

his convictions and the verdicts were against the weight of the evidence. See

Appellant’s Brief at 16-19. Carmichael argues that the evidence was

insufficient to support his convictions because the Commonwealth failed to

prove that he had knowledge that Sergeant Cole was a law enforcement officer

or acted with an intent to cause bodily injury. See id. at 17-18. Likewise,

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Carmichael claims that verdicts shock the conscience because of the lack of

evidence establishing his intent to cause bodily injury or knowledge of the

presence of a law enforcement officer. See id. at 19.

Critically, Carmichael’s sufficiency and weight claims were raised on

direct appeal. See Carmichael, 433 EDA 2016 (unpublished memorandum at

6-10 (addressing the sufficiency claim), 13-18 (addressing the weight

challenge)). Therefore, Carmichael previously litigated these claims in this

Court, and is ineligible for relief under the PCRA. See 42 Pa.C.S.A.

§ 9543(a)(3) (noting that to be eligible for relief under the PCRA, the

petitioner must plead and prove that the “allegation of error has not been

previously litigated”); see also id. § 9544(a)(2) (stating that an issue is

deemed previously litigated if the highest court where review was due as a

matter of right has reviewed the issue on the merits); Commonwealth v.

Postie, 200 A.3d 1015, 1025 (Pa. Super. 2018) (en banc) (“Because the

Superior Court is the highest court in which [a]ppellant was entitled to review

as a matter of right, and he obtained merits review on his current claim of

trial court error, [a]ppellant’s underlying issue has been ‘previously litigated’

for purposes of the PCRA.” (emphasis in original) (citation omitted)).

Moreover, and in any event, these claims are not cognizable under the PCRA.

See 42 Pa.C.S.A. § 9543(a)(2); see also Commonwealth v. Price, 876

A.2d 988, 995 (Pa. Super. 2005) (rejecting a sufficiency claim that was raised

on PCRA appeal without an ineffective assistance of counsel analysis because

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it is not cognizable under the PCRA). Therefore, we cannot conclude the PCRA

court erred in denying Carmichael any relief on either the sufficiency or weight

of the evidence presented at trial.

In his final claim, Carmichael contends that his sentence for the assault

of a law enforcement officer was illegal because it exceeded the maximum

amount allowed by law. See Appellant’s Brief at 19-20. Although the PCRA

states that a challenge to the legality of sentence is cognizable in a timely

PCRA petition, see 42 Pa.C.S.A. § 9543(a)(2)(vii), we note this Court

previously rejected this specific claim on direct appeal. See Carmichael, 433

EDA 2016 (unpublished memorandum at 10-13); see also id. (unpublished

memorandum at 13 (“[Carmichael’s] sentence of twenty to forty years was

both mandated and proper.”)). Therefore, this claim was previously litigated,

and we cannot grant any relief to Carmichael. See 42 Pa.C.S.A. § 9544(a)(2);

Postie, 200 A.3d at 1025.

Carmichael also challenges the discretionary aspects of his sentence.

See Appellant’s Brief at 20. “Challenges to the discretionary aspects of

sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler,

930 A.2d 586, 593 (Pa. Super. 2007). Therefore, we cannot review this claim.

Since Carmichael has not established the PCRA court erred in rejecting

his petition, we affirm the PCRA court’s order.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/18/2023

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