NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
DAVID CARSON Appellant No. 999 EDA 2013
Appeal from the PCRA Order March 15, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0810901-1998
BEFORE: MUNDY, J., OLSON, J., and WECHT, J. MEMORANDUM BY MUNDY, J.: FILED AUGUST 27, 2014 Appellant, David Carson, appeals from the March 15, 2013 order dismissing his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1 The relevant facts of this case were summarized by the trial court on direct appeal as follows.
[O]n July 15, 1998, [A]ppellant conspired with Julius Edwards to rob 18[-]year-old [Romie] Webb.
Several witnesses observed Edwards in possession of an AK47 assault rifle earlier that day. Edwards took
block of Price Street in Philadelphia sometime in the afternoon. He and [A]ppellant then sat on the porch together for most of the afternoon and evening.
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1 The Commonwealth has not filed an appellate brief in this matter.
Webb lived on the 800 block of Price Street and was selling drugs on the same corner where [A]ppellant used to sell drugs before getting locked up. People in the area knew that Webb kept the crack cocaine he sold in a prescription pill bottle[,]
which he stashed under the bumper of a parked car.
At approximately [10]:25 p.m., [A]ppellant and
Edwards, wearing a striped shirt and armed with the AK47, ordered Webb to give him money. Webb responded that he had no money on him, and handed him the pill bottle containing the drugs. As Edwards was about to leave, [A]ppellant came around the corner and shot Webb four times in the back. Webb died later that night from gunshot wounds.
After shooting Webb, [A]ppellant ran back into an alley where he took off the blue Nautica sweatshirt he was wearing and spoke briefly with his brother, Aaron Carson. Appellant then returned to the corner and leaned over Webb, saying that he was going to be all right. When police arrived, Appellant was instructed to move away.
Approximately thirty minutes after the shooting,
porch. The blue Nautica sweatshirt was on the
bottle was in [A]ppellan
AK47 that Edwards was carrying was leaning against the rear of an adjoining property.
Trial Court Opinion, 10/12/05, at 2-3.
Both Appellant and Edwards were subsequently arrested in connection with this incident, and on July 15, 1998, were charged with second-degree murder and related offenses. On May 25, 1999, the trial court granted hat of Edwards. Appellant waived his right to a jury and, following multiple continuances, proceeded to a
3
bench trial on December 10, 2003.2 On December 17, 2003, the trial court found Appellant guilty of second-degree murder, robbery, criminal conspiracy, and possessing an instrument of crime.3 Appellant filed a motion for extraordinary relief, which was denied by the trial court following a hearing on January 11, 2005. That same day, the trial court sentenced Appellant to an aggregate term of life imprisonment. Appellant subsequently filed timely post-sentence motions, which were denied by the trial court on February 10, 2005.
On April 19, 2005, Appellant filed a notice of appeal. On March 10, 2005, the trial court ordered Appellant to file a concise statement of matters complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed his Rule 1925(b) statement on March 28, 2005, four days late. On June 28, 2006, a panel of this Court quashed l due to its procedural defects. See Commonwealth v.
Carson, 905 A.2d 1040 (Pa. Super. 2006) (unpublished memorandum).
Appellant obtained new counsel, Jules Epstein, Esquire (Attorney
direct appeal rights nunc pro tunc. On July 19, 2006, the PCRA court
entered an order allowing the direct appeal, nunc pro tunc. On July 21,
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2 Appellant was represented at trial by Louis T. Savino, Jr., Esquire (Attorney Savino). 3 18 Pa.C.S.A. §§ 2502(b), 3701, 903, and 907, respectively.
4
O sentence, and our Supreme Court denied his petition for allowance of appeal on December 5, 2007. See Commonwealth v. Carson, 929 A.2d 235 (Pa. Super. 2007) (unpublished memorandum), appeal denied, 937 A.2d 443 (Pa. 2007).
Esquire (Attorney Gelman), filed a timely PC behalf. In said petition, Appellant argues, inter alia, that Attorney Savino rendered ineffective assistance by failing to properly safeguard his right to speedy trial, pursuant to Pennsylvania Rule of Criminal Procedure 600.4 See
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4 Rule 600 provides, in pertinent part, as follows.
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
(2) Trial shall commence within the following time periods.
(a) Trial 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.
(C) Computation of Time
(Footnote Continued Next Page)
5
-6. Attorney
petition on July 23, 2009. Thereafter, Attorney Gelman filed a supplemental
supplemental amended petition. On February 1, 2013, the PCRA court conducted an e Both Appellant and Attorney Savino testified at said hearing. Following this
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(Footnote Continued)
(1) For purposes of paragraph (A), 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. Any other periods of delay shall be excluded from the computation.
(2) For purposes of paragraph (B), only periods of delay caused by the defendant shall be excluded from the computation of the length of time of any pretrial incarceration. Any other periods of delay shall be included in the computation.
Pa.R.Crim.P. 600(A)(2), (C)(1-2).
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petitions on March 15, 2013. On April 1, 2013, Appellant filed a timely notice of appeal.5 On appeal, Appellant raises the following issues for our review.
I. Did the judges to whom this case was assigned turn a blind eye to the flagrant violation of Rule 600 and abdicate their responsibility to enforce Rule 600 and the Federal speedy trial right[,] which were eviscerated by the incredible 5½ year delay in bringing Appellant to trial?
A. Was trial counsel ineffective for for [sic]
continuing the case for over five years and failing to file a motion to dismiss based on aggravated delay in violation of
speedy trial right?
II. If Appellant cannot show actual prejudice, can
III. Was trial counsel ineffective because he failed to assert his clie
the Federal Speedy trial right to a trial and allowed his client to languish in a detention center for over 5½ years?
IV. Was trial counsel ineffective because he failed
making process based upon demeanor evidence and failed to move to [sic] for a new trial based thereon?
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5 The PCRA court did not order Appellant to file a concise statement of errors complained on appeal, pursuant to Rule 1925. The PCRA court, however, di on August 7, 2013. See PCRA Court Opinion, 8/7/13, at 3-13.
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V. Is Appellant entitled to a new trial because appellate counsel was ineffective for failing to raise a claim that the Commonwealth presented insufficient evidence to sustain his conviction because its witnesses were lacking
below the beyond a reasonable doubt standard, claims that were raised by trial counsel in post sentencing motions, and denied?
VI. Was trial counsel ineffective for failing to object properly to the introduction of the prior sworn testimony given by Ms. Gorham at the Edwards trial on the grounds that while it could have been used to impeach her credibility at
sufficiently reliable to be used substantively?
claims in a slightly different order than presented in his appellate brief. Additionally, to the extent Appellan will be addressed concurrently.
On appeal from the denial of PCRA relief, our standard and scope of
supported by the record and without legal error. Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
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omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. Id. § 9543(a)(3). de novo standard of review to the PCRA co Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
In Issue I, Appellant argues that the trial court abused its discretion by
1. To the extent Appellant is attempting to assert a substantive Rule 600 claim, we conclude this claim is not cognizable under the PCRA.
It is well settled that in order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must not be previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). In Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005), appeal denied, 897 A.2d 1184 (Pa. 2006), cert. denied, Price v. Pennsylvania, 549 U.S. 902 (2006), a panel of this Court held the following.
Generally, an appellant may not raise allegations of error in an appeal from the denial of
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PCRA relief as if he were presenting the claims on direct appeal. Commonwealth v. Brown, [872 A.2d 1139, 1146-1148 (Pa. 2005)] (stating claims available on direct appeal are waived for purposes of PCRA review and this waiver cannot be overcome, absent full layered ineffectiveness of counsel analysis).
Id. at 995 (citation formatting corrected); accord 42 Pa.C.S.A. § 9544(b) (stating, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
Instantly, Appellant could have raised this substantive Rule 600 challenge on direct appeal, but failed to do so; thus, this claim is not cognizable under the PCRA. See Price, supra. Furthermore, to the extent
argument unavailing.
See - 600 claim is waived.
rendered
ineffective assistance of counsel by failing to properly safeguard his right to speedy trial. Specifically, in Issues IA and III, Appellant contends that Attorney Savino was ineffective by failing to file a motion to dismiss this case on Rule 600 grounds, and in seeking multiple pre-trial continuances
Id. at 11, 21.
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Appellant further maintains that Attorney Savino was ineffective in failing to Id. at 21-22. For the following reasons, we disagree.
To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must plead and prove by a preponderance of the evidence -determining process
42 Pa.C.S.A. § 95 (1) the
Koehler, supra at 132, citing Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987). ounsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that
Koehler, supra at 131 (citation omitted).
Instantly, relief, as the record establishes that Appellant has failed to satisfy the third prong of the aforementioned ineffectiveness test, by proving that he suffered actual prejudice as a result of to dismiss on the basis of Rule 600 or pursue his speedy trial rights claim. See Koehler, supra at 132. The record reveals that Appellant has conceded in both his supplemental amended petition and in Issue II of his
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appellate brief that although he See Supplemental PCRA Petition,
This Court has recognized that presumptive prejudice is not sufficient
delay in prosecution, a defendant must show that the passing of time caused actual prejudice Commonwealth v. Neff, 860 A.2d 1063, 1074 (Pa. Super. 2004) (citation omitted; emphasis added), appeal denied, 878 A.2d 863 (Pa. 2005). o demonstrate prejudice, appellant must show there is a
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation omitted). A peti ailure to satisfy the prejudice prong of the ineffectiveness test will defeat an ineffectiveness claim. See Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa.
f it is clear that [the petitioner] has not demonstrated that of the proceedings [pursuant to the third prong of the Koehler test], the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs [of the Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007).
Based on the foregoing, Appellant has failed to meet his burden of proof with respect to the prejudice prong of his Rule 600 ineffectiveness
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claim, and thus, his claim in this regard must fail. See Philistin; see also Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009)
any of the prongs, th[is] Court need not address the remaining prongs of appeal denied, 990 A.2d 727 (Pa. 2010).
Commonwealth presented insufficient evidence to sustain his conviction
claim that the witnesses who identified him lacked credibility implicates the weight of the evidence. See Commonwealth v. Montalvo, 956 A.2d 926, 932 n.6 (Pa. 2008) (holding that a claim that the evidence is insufficient challenges the weight, and not the cert. denied, Montalvo v. Pennsylvania, 556 U.S. 1186 (2009).6
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6 This claim essentially mirrors that raised by Appellant in Issue VII in the wherein he contends Attorney Epstein was ineffective for failing to raise and argue the weight of the evidence. See -41. Although Appellant did not
proceed to address it in conjunction with Issue V.
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Upon careful ineffectiveness claim in this regard merits no relief. The record establishes that Appellant has failed to satisfy the first prong of the aforementioned underlying [weight of the evidence]
See Koehler, supra.
Instantly, the trial court addressed both the sufficiency and weight of
claims in this regard were devoid of merit. Specifically, the trial court reasoned as follows.
[T]here was direct and circumstantial evidence proving beyond a reasonable doubt that [A]ppellant was the shooter. In regard to the direct evidence,
Gordon denied that she was able to identify the shooter, she previously testified under oath in co-
[A]ppellant shoot and kill Webb. She further
wearing a blue Nautica sweatshirt when he shot the victim, and that he always carried a .9 millimeter handgun, the murder weapon in this case. Based on
testimony from the cocredible .
There was also ample compelling
Dorthea Crosby testified that just moments after the shooting she observed [A]ppellant, wearing a dark long-sleeve Nautica sweatshirt, and Edwards in a striped shirt, running towards Boyer Street. Ms.
Crosby, as well as other witnesses who lived in the neighborhood had often seen [A]ppellant wearing
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that shirt. She also had seen him recently in possession of a .9 millimeter handgun. Crosby observed [A]ppellant take off the sweatshirt when he stopped to speak briefly with his brother before returning to the spot where the victim lay dying.
When arrested by police on the porch of his home shortly after the incident, the blue Nautica sweatshirt
pill bottle taken in the robbery was in his pants pocket. The striped shirt worn by Edwards was
AK 47 assault weapon was discovered leaning up against the rear of the property adjoining
Commonwealth witness Oscar Granger was unable to see who was doing the shooting, but was able to observe Edwards and another male run to the Boyer Street alley immediately after the shooting.
The second male was wearing a long sleeve dark color shirt and was tucking what appeared to be a weapon into his waistband. Although Granger
identify this second male, he had identified him as
[A]ppellant turned towards him as he ran and said this prior testimony credible.
Trial Court Opinion, 10/12/05, at 7-9 (citations to notes of testimony omitted).
We agree with the conclusions of the trial court, and decline to disturb
weight of the evidence is predicated on the credibility of trial testimony, our Commonwealth v.
Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009), appeal denied, 3 A.3d 670
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Spotz, supra. Accordingly, we conclude that Attorney Epstein was not ineffective in failing to raise this meritless weight claim on direct appeal. See Philistin, supra (stating, Pierce] test will defeat an (citation omitted).
In his final two claims on appeal, Appellant argues that Attorney Savino rendered ineffective assistance of counsel by failing to make various objections during trial. Specifically, in Issue IV, Appellant contends Attorney
ma
considered the demeanor of the witnesses and speculated that they knew Appellant was the shooter, and m
Id. at 23-
26, 31.7 For the following reasons, we disagree.
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7 Specifically, Appellant cites the following statements of the trial court in support of his argument.
THE [TRIAL] COURT: I really believe, after watching, in all honesty, when I watched the witnesses, and I watched them carefully, my opinion (Footnote Continued Next Page)
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Our review of the record reveals that Appellant has failed to establish
undermined the truth-determining process that no reliable adjudication of 2 Pa.C.S.A. § 9543(a)(2)(ii).
Specifically, Appellant has failed to demonstrate
should have objected. See Koehler, supra. contention, the record reflects that the trial court did not base its verdict on mere speculation or the demeanor of the witnesses who testified at trial.
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(Footnote Continued)
is every witness that testified knew he was the
witnesses like you have, and you know your witnesses, okay. You had that shirt, why, why
corroborate these witnesses. These witnesses were poor. They lied at one time they changed their story, changed the story back then and she changed to [sic] story back then.
Now how many times do I have to do that [hesitate]
in this case? A number of times. Every witness you put up, I have to hesitate about, because they have given different statements. They have lied to police.
-24, quoting N.T., 12/17/03, at 79, 32-33, and 36-37, respectively.
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Rather, as discussed, supra, the trial court reviewed the direct and circumstantial evidence presented by the parties at trial at great length, and
the crimes charged. See Trial Court Opinion, 10/12/05, at 7-9. As such, n making
object on this meritless basis must fail.
In Issue VI, Appellant further argues that Attorney Savino was ineffective in failing to object to the introduction of the prior sworn testimony of witness Naeemah Gorham at co-
at 34. App
Id. at 34, 36-37.
Again, we disagree.
The record reveals that Appellant has failed to satisfy prong one of the aforementioned ineffectiveness test by proving the underlying legal Koehler, supra. Our Supreme Court has long recognized that a prior inconsistent statement of a non-party witness is admissible as substantive evidence if the statement was given under highly reliable circumstances and if the declarant is a witness at trial, subject to
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cross-examination. Commonwealth v. Romero, 722 A.2d 1014, 1017 (Pa. 1999), cert. denied, Romero v. Pennsylvania, 528 U.S. 952 (1999); accord Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992). The Lively Court noted the following three circumstances in which a prior inconsistent statement may be deemed sufficiently reliable and trustworthy to be admissible as substantive evidence. First, when it was made under oath in a formal legal proceeding; second, when it was a writing signed and adopted by the declarant; or third, when it was a contemporaneous verbatim recording of the statement. Lively, supra at 10. These three circumstances have been formalized as Pennsylvania Rule of Evidence 803.1(1), which provides as follows.
Rule 803.1. Exceptions to the Rule Against Hearsay--Testimony of Declarant Necessary
The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:
(1) Prior Inconsistent Statement of Declarant-
Witness. A prior statement by a declarant-witness that is inconsistent with the declarant-witness's testimony and:
(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant;
or
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(C) is a verbatim contemporaneous electronic, audiotaped, or videotaped recording of an oral statement.
Pa.R.E. 803.1(1).
-
trial was admissible as substantive evidence in the case sub judice, as it
-examination. See id.
This is especially true in light of the fact that Gorham testified inconsistently
testimony credible. See egard
were other more logical courses of action which counsel could have pursued;
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011)
Philistin, supra.
Based on the foregoing, we conclude that Appellant has failed to satisfy prong two of the aforementioned ineffectiveness test by proving how
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sworn testimony lacked an objective reasonable basis. Accordingly, s claim in this regard must fail.
For all the foregoing reasons, we conclude that the PCRA court
March 15, 2013 order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/27/2014