J-S38034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL DAVID, : : Appellant : No. 3029 EDA 2013
Appeal from the PCRA Order Entered October 25, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0402281-2006.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 21, 2014
Appellant, Michael David, appeals from the denial of his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–
9546. We affirm.
In Appellant’s direct appeal, we recited the relevant facts as
summarized by the trial court, as follows:
On December 3, 2005, at around 11:10 a.m., Officer Thomas Quinn and Sergeant Michael Colello, of the Philadelphia Police Department, while in their respective patrol cars on the 3100 block of Jasper Street, heard a loud noise which sounded like a gunshot. Notes of Testimony (N.T.) 2/5/08 at 108-131; N.T. 2/6/2008 at 15-17. Both officers then drove northbound on Jasper towards the 1800 block of Clementine Street, when a call regarding a shooting came over police radio. N.T. 2/5/08 at 114. As he reached the intersection, Officer Quinn was flagged down by a woman who told him that there was a man laying on the sidewalk on South Clementine Street. Id. at 119-20. Officer Quinn found Craig Clayton (victim) on the J-S38034-14
ground; he was non-responsive and was having a hard time breathing. Medics pronounced him dead at the scene. Id. at 123. Sergeant Colello immediately attempted to gather information and question witnesses as to what they may have seen that morning. N.T. 2/6/08 at 21. One witness relayed that a Black male wearing a green jacket, green pants, and carrying a black trash bag had run towards Kensington Avenue. Id. at 22, 24-25.
On the previous night, December 2, 2005, Hector Caceres, a resident of Clementine Street, had arrived home at approximately 9:30 p.m. N.T. 2/5/08 at 265. As he parked his car, Mr. Caceres noticed two Black men whom he did not recognize. Id. at 266. One of the men stood next to a tree at Stouton and Clementine Streets. Id. He had on a dark, heavy coat and a black hat. Id. The other man stood across the street. Id. An hour later, at approximately 10:30 p.m., Monica Yancey, another resident of Clementine Street, left her home. N.T. 2/7/08 at 204. She was on the way to the store when she noticed two men, whom she did not recognize, standing on the corner of Stouton and Clementine. Id. at 204- 05. Ms. Yancey felt uneasy and decided to go back inside of her house rather than go to the store. Id. at 205.
At 10:40 the next morning, December 3, 2005, Mr. Caceres was on his way to the corner store when he noticed that the same men he had seen the night before were standing in the same locations. N.T. 2/5/08 at 267-68, 273, 277-79. That same morning, Brandy Saunders was walking towards her mother’s house on Clementine Street when she noticed two Black men at the intersection of Ruth and Clementine. N.T. 2/6/08 at 130-31, 133. As she walked past them, the shorter of the two called out to her while the taller man spoke on a cell phone. Id. at 134, 136. She overheard the taller man on the phone say “it’s about to happen in five minutes.” Id. at 134-36. Ms. Saunders then entered her mother’s home and approximately five minutes later she heard a loud noise that sounded like a gunshot. Id. at 138-39.
Around the same time, Ms. Yancey heard a popping sound which she believed to be a car window breaking. N.T. 2/7/08 at 216-17. She quickly went outside to investigate the noise, and
-2- J-S38034-14
observed the defendant and co-defendant [Jones] across the street. Id. at 216-19. She yelled to them that she was going to call the police and Jones ran towards Kensington Avenue while the defendant ran towards Jasper Street. Id. at 225-26. Ms. Yancey noticed that, as he ran, Jones carried a black garbage bag underneath his arm. Id. at 229. A neighbor then informed Ms. Yancey that there was a body on the ground. Id. at 236.
B.O., a resident of Jasper Street, was retrieving clothing from her aunt’s minivan on Clementine Street when she heard people arguing. N.T. 2/5/08 at 216-22. She turned and saw three men-two were arguing and the third was talking on his cell phone. Id. at 222-24. She then realized that the taller of the two quarreling men was pointing a gun toward the other man’s face as he backed away with his hands up. Id. at 224-25. B.O. saw the taller man shoot him, and she began running back towards her aunt’s house. Id. at 225-29. As she ran, she saw the taller man running in her direction. Id. at 227-29. She entered her aunt’s home, but did not observe in what direction the man then ran. Id. at 232.
At the scene, officers recovered from the victim’s person the following items: jewelry, money, a wallet, business cards, and a notebook. The notebook was opened to a page that contained: the address of 1833 Clementine; two telephone numbers, (215) 888-2400 and (267) 262-5094; the name “Mike”; and a notation which said “Size 12 Tims.” N.T. 2/6/08 at 74-75.
In the early evening of December 3, 2005, the police located the victim’s vehicle on the corner of Clementine and Jasper Streets. Id. at 263-266. Detective John Cahill found the victim’s cell phone in the vehicle, along with a large quantity of sporting goods. N.T. 2/7/08 at 117-18. An investigation into the victim’s cell phone records revealed that the last incoming call on the victim’s cell phone was at 10:49 a.m. on December 3, 2005, from (215) 888-2400; the last outgoing call was at 11:04 a.m. to that same number. N.T. 12/12/08 at 214, 216. Detective Francis Kerrigan subpoenaed subscriber information and call records for (215) 888-2400 from Sprint Nextel for the period from December 2 to December 5, 2005. N.T. 2/6/08 at
-3- J-S38034-14
223-24. This cell phone was found to be registered to Dolores Johnson, co-defendant Jones’ grandmother. Id. at 226; N.T. 2/7/08 at 112. The phone records revealed that the last call between Dolores Johnson’s cell phone and the victim’s cell phone occurred on December 3, 2005, at 11:04 a.m. N.T. 2/6/08 at 237.
On December 20, 2005, Ms. Yancey identified the defendant in a photo array. N.T. 2/7/08 at 243. On December 22, 2005, at approximately 6:15 a.m., an arrest and search warrant were executed and the defendant was arrested at his residence at 4649 Tackawanna Street, in Philadelphia. N.T. 2/7/08 at 133-34; N.T. 12/12/08 at 180.
Trial Court Opinion, 12/3/08, at 2-5 (footnotes omitted).
Commonwealth v. David, 2309 EDA 2009, 988 A.2d 717 (Pa. Super. filed
November 25, 2009) (unpublished memorandum at 1–4).
Appellant was charged with murder and related offenses. He originally
went to trial in June 2007, but when the jury was unable to reach a verdict,
the court granted a mistrial. Appellant’s retrial in February 2008 before a
jury occurred in conjunction with co-defendant Christopher Jones. Appellant
was found guilty of second degree murder, robbery, possessing instruments
of crime (“PIC”), and conspiracy. The court sentenced Appellant on
February 15, 2008, to life imprisonment for murder with concurrent terms of
twelve to sixty months and ninety to 180 months for PIC and conspiracy,
respectively. Holding that robbery merged with murder for purposes of
sentencing, the court did not impose a separate sentence for robbery.
-4- J-S38034-14
Appellant filed post-trial motions, which the trial court denied following
a hearing. Appellant then filed a timely appeal to this Court, raising seven
issues. We affirmed the judgment of sentence on November 25, 2009.
David, 2309 EDA 2008, 988 A.2d 717. Our Supreme Court denied
Appellant’s petition for allowance of appeal on May 4, 2010.
Commonwealth v. David, 718 EAL 2009, 995 A.2d 351 (Pa. filed May 4,
2010).
On May 27, 2010, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, who filed an amended PCRA petition on November
18, 2011. Upon Appellant’s request to proceed pro se on September 10,
2012, the PCRA court held a hearing on October 5, 2012, pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988); the PCRA court
represented that Appellant “equivocated” at that hearing. PCRA Court
Opinion, 12/12/13, at 2. On November 28, 2012, Appellant again requested
to proceed pro se. The PCRA court held a second Grazier hearing1 on
January 31, 2013, following which the PCRA court concluded that Appellant’s
waiver of counsel was knowing, intelligent, and voluntary.2
1 While there is no issue raised regarding Appellant’s self-representation in this appeal, we note that neither transcript from the Grazier hearings is in the record certified to us on appeal. 2 While the Grazier hearing was proceeding, Appellant filed a pro se motion to supplement the amended PCRA petition that was dated December 24, 2012, and filed December 31, 2012.
-5- J-S38034-14
On February 15, 2013, Appellant filed a motion for additional
discovery. The PCRA court held a hearing on June 4, 2013, and thereafter
granted Appellant’s request for additional discovery regarding two cellular
telephones police had seized from his home. PCRA Court Opinion, 12/12/13,
at 3.3 On October 3, 2013, the PCRA court issued notice pursuant to
Pa.R.Crim.P. 907, indicating its intent to deny Appellant’s PCRA petition
without a hearing. Appellant submitted a thirteen-page response dated
October 8, 2013, which was filed on October 16, 2013. On October 25,
2013, the PCRA court dismissed the PCRA petition, and Appellant filed the
instant timely appeal to this Court. Both the PCRA court and Appellant
complied with Pa.R.A.P. 1925.
In his appellate brief, Appellant raises four of the five issues of
ineffective assistance of counsel that he raised in his Pa.R.A.P. 1925(b)
statement. Those four issues are as follows:
1. Was trial counsel ineffective for failure to investigate all phone records relevant in the trial, and did the PCRA Court err in dismissing this claim without a hearing?
2. Was trial counsel ineffective for failure to impeach Brianna O’Brien with her prior inconsistent statement, and calling [Detective] Santamala and Kelly O’Brien? Also, did the PCRA court err in dismissing this claim without a hearing?
3. Was appellant[’s] counsel ineffective for failure to properly challenge second degree murder, in the petitioner’s insufficient
3 Appellant has not included notes of testimony from the June 4, 2013 hearing referenced by the PCRA court in the record certified to us on appeal.
-6- J-S38034-14
evidence claim? Also did the PCRA court err in dismissing this claim without a hearing?
4. Was [A]ppellant[’s] counsel ineffective for failure to raise a violation of the Due Process Clause of the U.S. Constitution as well as the PA. state Constitution pertaining to the impermissible hearsay claim? Also, did the PCRA Court err in dismi[s]sing this claim without a hearing?
Appellant’s Brief at 4.
Our Supreme Court recently reiterated the standard and scope of
review when the PCRA court dismisses cognizable claims without a hearing,
as follows:
To obtain reversal of a PCRA court’s summary dismissal of a petition, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief. The controlling factor in this regard is the status of the substantive assertions in the petition. Thus, as to ineffectiveness claims in particular, if the record reflects that the underlying issue is of no arguable merit or no prejudice resulted, no evidentiary hearing is required. For each such claim, we review the PCRA court’s action for an abuse of discretion.
Commonwealth v. Baumhammers, 92 A.3d 708, 726–727 (Pa. 2014)
(internal citations omitted).
In post-conviction collateral proceedings, the petitioner bears the
burden to plead and prove eligibility for relief. See 42 Pa.C.S. § 9543(a).
When considering an allegation of ineffective assistance of counsel, counsel
is presumed to have provided effective representation unless the PCRA
petitioner pleads and proves that: (1) the underlying claim is of arguable
merit; (2) counsel had no reasonable basis for his or her conduct; and
-7- J-S38034-14
(3) Appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order
to meet the prejudice prong of the ineffectiveness standard, a petitioner
must show that there is a reasonable probability that but for the act or
omission in question the outcome of the proceeding would have been
different.” Commonwealth v. Wallace, 724 A.2d 916, 921 (Pa. 1999). A
claim of ineffective assistance of counsel will fail if the petitioner does not
meet any of the three prongs. Commonwealth v. Williams, 863 A.2d
505, 513 (Pa. 2004) (quoting Commonwealth v. Rush, 838 A.2d 651, 656
(Pa. 2003)).
Following our careful review of the record, the arguments of the
parties, and our consideration of the applicable law, we conclude, except as
relates to the first issue, that the well-reasoned, detailed opinion of the
PCRA court thoroughly addresses the issues raised, and we adopt that
opinion as our own.4 We address the first issue Appellant raises on appeal
separately because the PCRA court responded to a different claim due to
Appellant’s imprecise and vague wording in his statement of the issue in his
Pa.R.A.P. 1925(b) statement.
The rambling, often inexplicable argument by Appellant challenges our
ability, much like the PCRA Court’s, to address Appellant’s contention. It
4 The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.
-8- J-S38034-14
appears that in his first issue, Appellant is asserting that the PCRA court
erred in denying his claim that trial counsel was ineffective for failing to
investigate telephone records in this case. We agree with the
Commonwealth that this issue is waived because Appellant failed to identify
it with specificity in his Pa.R.A.P. 1925(b) statement.
In his pro se supplement to the amended PCRA petition that he filed
on November 28, 2012, Appellant advanced trial counsel’s failure to
investigate telephone records, including the records for his own cellular
telephone, and the cellular telephones used by three others: the victim, co-
defendant Jones, and an unidentified person who called the telephone used
by co-defendant Jones from telephone number (267) 825-3918
(“unidentified user”). In his Rule 1925(b) statement, Appellant had
identified the following claim: “Was trial counsel ineffective for failure to
investigate all phone records relevant in the trial, and did the PCRA Court err
in dismissing this claim without a hearing?” 1925(b) Statement of the
Petitioner, Michael David, 11/8/13, at 1. Appellant’s phraseology of “all
phone records” resulted in the PCRA court’s consideration of trial counsel’s
alleged failure to investigate the records for the telephones recovered from
Appellant’s home. On appeal, Appellant instead focuses on the three
telephones used by the victim, co-defendant Jones, and the unidentified
-9- J-S38034-14
user. Thus, Appellant’s imprecision and lack of clarity in his Rule 1925(b)
statement mislead the PCRA court to address an entirely different claim.
Rule 1925 requires that “[t]he Statement shall concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail
to identify all pertinent issues for the judge.” Pa.R.A.P. 1925 (b)(4)(ii)
(emphasis added). The Rule further provides that “[i]ssues . . . not raised in
accordance with the provisions of this paragraph (b)(4) are waived.” Id.,
(b)(4)(vii); See also Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.
Super. 2011) (citations omitted) (Rule 1925(b) statement must be “specific
enough for the trial court to identify and address the issue an appellant
wishes to raise on appeal,” and “if a concise statement is too vague, the
court may find waiver.”); see also Greater Erie Indus. Development
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014)
(“Our Supreme Court intended the holding in [Commonwealth v.] Lord[,
719 A.2d 306 (Pa. 1998)] to operate as a bright-line rule, such that ‘failure
to comply with the minimal requirements of Pa.R.A.P.1925(b) will result in
automatic waiver of the issues raised.’”). Accordingly, we conclude that
Appellant’s first issue is waived. Commonwealth v. Garang, 9 A.3d 237,
244 (Pa. Super. 2010) (holding issues not included in the Pa.R.A.P. 1925(b)
statement or raised in accordance with the provisions of Rule 1925(b)(4) are
waived).
-10- J-S38034-14
Even if not waived, the issue lacks merit. In initially raising this claim
in the PCRA court, Appellant contended, without citing support, that trial
counsel provided ineffective assistance because he failed to reveal that co-
defendant Jones’s telephone “was in contact with the 825# thirty-nine times,
back and fourth [sic],” and “with the victim seventeen times, back and
fourth [sic].” Motion to Proceed Pro Se, 11/28/12, at 1. Appellant
contended that trial counsel “could have and should have use[d] this to
undermine the prosecution’s theory of a murder in the furtherance of a
robbery.” Id. In his brief, Appellant suggests that due to the myriad
number of calls, “this murder was not in the furtherance of a robbery”
because “no normal businessman would need to make so many calls back
and forth for such a small purchase after business hours, if this was just
your everyday transaction.” Appellant’s Brief at 7.
Appellant has failed to show how trial counsel’s additional investigation
into telephone records would have provided a new defense theory in this
case. In his April 2, 2013, response to the Commonwealth’s second motion
to dismiss, Appellant cited to the notes of testimony from the July 24, 2008
post-sentence motion hearing to support his claim that trial counsel failed to
properly investigate telephone records in this case. Petitioner’s Response to
Motion to Dismiss, 4/2/13, at unnumbered 1. In the first cited passage, the
trial court asked counsel whether he had subpoenaed telephone records for
-11- J-S38034-14
telephone number (267) 825-3918, the unidentified user. N.T., 7/24/08, at
51. Counsel confirmed that he had not sought records for that number from
a telephone company but instead, had attempted to subpoena them from
the father or stepfather of co-defendant Jones. Id. at 51–52. Counsel
stated that he intended to present the testimony of co-defendant Jones’s
father “who could confirm the phone records.” Id. at 52.
The telephone records in question had been discussed at trial through
various witnesses. Philadelphia Detective Gregory Santamala testified that
he was dispatched to the 1800 block of Clementine Street, where the
murder occurred. N.T., 2/6/08, at 68. Detective Santamala inventoried the
items removed from the victim’s pockets. One item was a notebook
containing the following information: “1833 Clementine, Mike, (215) 888-
2400.”5 Id. at 75.
The direct testimony of Detective Francis Kerrigan, who was a
Philadelphia homicide detective with a cross-designation as a task force
officer assigned to the United States Drug Enforcement Administration, also
referenced telephone records. N.T., 2/6/08, at 221. The detective testified
that “[o]ne of the things I did on this task force is subpoena phone records
in reference to the murder cases that we have here in Philadelphia.” Id. at
5 We note that throughout its brief, the Commonwealth frequently refers to this telephone number as (215) 888-4200, but the correct number in the notes of testimony is (215) 888-2400. N.T., 2/6/08, at 75.
-12- J-S38034-14
222. Detective Kerrigan testified that he obtained records for cellular
telephone number (215) 888-2400. That number was registered to Delores
Johnson, co-defendant Jones’s grandmother, and service to it was
terminated on the day of the murder. Id. at 226–227, 253; N.T., 2/7/08, at
101–103. Detective Kerrigan testified that (215) 888-2400 had called
unidentified user four times between 11:09 a.m. and 11:26 a.m., which was
moments after the shooting. N.T., 2/6/08, at 238. He also testified that the
unidentified user had contact with the victim’s telephone multiple times on
the night before and morning of the shooting. Id. at 230–237.
Appellant contends that trial counsel was ineffective for failing to
investigate and present telephone records at trial, specifically referring to
the contacts between the victim’s cellular telephone and (215) 888-2400,
the telephone belonging to Delores Johnson, as described above.
Appellant’s Response to Notice of Intent to Dismiss PCRA Petition Without a
Hearing, 10/16/13, at 1. As noted, however, all of those telephone calls
were described at trial. N.T., 2/6/08, at 230–237. To the extent Appellant
suggests trial counsel should have investigated the communications between
(215) 888-2400 and (267) 825-3918, unidentified user, Appellant has wholly
failed to advance any suggestion as to the user’s identity or any theory as to
how that number would have provided a new defense theory.
-13- J-S38034-14
Our review of the record reveals that the PCRA court gave Appellant
substantial leeway to develop this claim by holding a hearing on Appellant’s
request for additional discovery concerning telephone records on June 4,
2013. As we noted supra, Appellant has failed to include the notes of
testimony from that hearing in the record certified to us, but the
Commonwealth asserts that it was compelled to provide Appellant “with a
supplemental report addressing the phones recovered from his home.”
Commonwealth Brief at 27. We conclude that Appellant has failed to prove
that the underlying claim is of arguable merit as he never substantiated that
additional investigation into the telephone records would have provided any
basis for relief. Thus, the PCRA court properly denied this claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/21/2014
-14- Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM Circulated 09/25/2014 03:06 PM