J-S47011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DAVID DIPRIMIO
Appellant No. 945 EDA 2013
Appeal from the PCRA Order February 8, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005763-2008 CP-51-CR-0005764-2008 CP-51-CR-0005765-2008 CP-51-CR-0005766-2008 CP-51-CR-0005767-2008
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 26, 2014
Appellant, David DiPrimio, appeals from the February 8, 2013 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. In addition,
together with a Turner/Finley no-merit letter, averring the appeal is
without merit.1
and affirm the PCRA
____________________________________________ 1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc). J-S47011-14
The PCRA court summarized the relevant factual and procedural
history of this case as follows.
On April 27, 2008, [Appellant] got into a fight with patrons at Mick Daniels Bar in South Philadelphia. After closing, while the crowd was leaving the bar, [Appellant] opened fire from across the street, shooting six times and hitting three victims. One of the victims was a man he argued with inside the bar, the second victim was a man he argued with outside of the bar, and the third victim was a man who had been talking to the second victim at the time of the shooting. When the crowd chased [Appellant], he shot a fourth victim. Another man who heard the shots and saw [Appellant] running eventually subdued [Appellant] and gained control over the firearm. However, [Appellant] flagged down a police officer and blamed the shooting on the man who had subdued him. An off- duty police officer who had witnessed the shooting then arrived on scene and explained that [Appellant] was really the shooter[].
On March 25, 2009, [Appellant] was found guilty after a waiver trial before the Honorable John
count of attempted murder, simple assault, and possessing an instrument of crime.[2] On May 29, 2009, he was sentenced to an aggregate term of 15 [3] [Appellant] appealed his sentence; the judgment of sentence was affirmed on June 17, 2010. Commonwealth v. David DiPrimio, [4 A.3d 691 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 14 A.3d ____________________________________________ 2 18 Pa.C.S.A. §§ 2702, 901(a) (to commit 18 Pa.C.S.A. § 2502(a)), 2701, and 907, respectively. 3 Appellant was represented by Brian J. McMonagle, Esquire during trial and sentencing, and was represented by Mitchell Strutin, Esquire during his direct appeal.
-2- J-S47011-14
of appeal to the Pennsylvania Supreme Court was denied on December 28, 2010.
On March 26, 2012, Appellant, represented by [private counsel,] Kenneth A. Young, Esquire, filed a Petition pursuant to the [PCRA]. [On July 12, 2012, the Commonwealth filed a motion to dismiss
On December 6, 2012, and January 7, 2013, [the PCRA] court sent [Appellant] notice pursuant to
dismiss his PCRA Petition, explaining that the issues raised in his PCRA were without merit. [No response
February 8, 2013, [the PCRA] court formally
2013, [Appellant] filed this Notice of Appeal.
On April 11, 2013, [the PCRA] court ordered a 1925(b) Statement from [Appellant]. Postmarked April 26, 2013, [Appellant] sent this court his 1925(b) Statement, raising numerous claims on appeal.
PCRA Court Opinion, 5/21/13, at 1-3.
Young filed a petition to withdraw before the PCRA court, averring he had
not been retained to represent Appellant on appeal and that Appellant could
not afford counsel. On August 14, 2013, Appellant petitioned this Court for
appointment of new counsel. On August 27, 2013, we remanded the matter
to the trial court for resolution. On September 10, 2013, the PCRA court
ordered that new counsel be appointed to represent Appellant in the instant
-3- J-S47011-14
appeal. On October 4, 2013, John Belli, Esquire (Attorney Belli) filed his
Attorney Belli, subsequently filed a petition to withdraw as counsel,
together with a Turner/Finley letter on October 29, 2013. On May 5, 2014,
Appellant filed a pro se
no-merit letter.
In his Turner/Finley letter, Attorney Belli identifies the following
1925(b) statement.
1. The PCRA Court erred by holding that
ineffective for failing to investigate, develop, and present evidence that [A]ppellant was suffering from severe cognitive deficits at the time of the incident did not entitle him to relief;
2. The PCRA Court erred by holding that
ineffective for failing to argue that he was incompetent to stand trial lacked merit;
3. The PCRA Court erred by holding that
ineffective for failing to investigate and subpoena witnesses for the defense entitled him to no relief;
4. The PCRA Court erred by not granting relief on a claim alleging that trial counsel was ineffective for failing to obtain and present
of establishing that he lacked the mental capacity to form specific intent to kill;
-4- J-S47011-14
5. The PCRA Court erred by holding that
was ineffective for not reviewing the crime scene photos, which established that the
entitled him to no relief;
6. The PCRA Court erred by dismissing
appellate counsel were ineffective for failing to raise the preceding claims in a post[-]sentence motion and on direct appeal respectively; and
7. The PCRA court erred by failing to provide [A]ppellant with a [Rule] 907 notice that specifically identified the reasons why the court dismissed his PCRA petition without a hearing. Had [A]ppellant been aware of the reasons for denying him PCRA relief he would have alleged that PCRA counsel was ineffective because he:
a. failed to seek a retrospective competency evaluation;
b. investigation to an alternative to justification;
c. failed to certify the PCRA record with mental health records; and
d. fail[ed] to submit affidavits of witnesses.
Turner/Finley Letter, at 8-9.
In his pro se
Turner/Finley letter, Appellant raises the following additional issues.
-5- J-S47011-14
[1.] [W is not in compliance with the procedures for filing an [sic] Brief[?]4
[2.] [Whether] trial counsel was ineffective for failure to object to the inadequate jury waiver colloquy denying [] Appellant [h]is Sixth Amendment right to effective counsel and [whether] PCRA counsel was ineffective for
behalf[?]
Pro Se Response at 1, 2.
We reiterate the following principles guiding our consideration of an
appeal from the denial of PCRA relief.
standard and scope of review is limited to
support Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted) [, cert. denied, Edminston v. Pennsylvania, 1345 S. Ct. 639
findings of the PCRA court and the evidence of record, viewed in the light most favorable to the
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d
by
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
Court applies a de novo standard of review to the Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc). Further, in order to be eligible for PCRA relief, a petitioner must ____________________________________________ 4 Anders v. California, 386 U.S. 738 (1967).
-6- J-S47011-14
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).
without conducting a hearing.
[T]he right to an evidentiary hearing on a post- conviction petition is not absolute. It is within the
support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting
Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see
also Pennsylvania Rule of Criminal Procedure 907. We stress that an
evidentiary hearing is not meant to function as a fishing expedition for any
possible evidence that may support some speculative claim of
Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa.
2013) (internal quotation marks and citation omitted). We review a PCRA
Id. at
604.
-7- J-S47011-14
aw from representation. As described by our
Supreme Court, the requirements PCRA counsel must adhere to when
requesting to withdraw include the following.
- detailing the nature and extent of his review;
- listing each issue the petitioner wished to have reviewed;
- were meritless[.]
Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,
supra Counsel must also send to the petitioner: (1) a copy of the
-
a statement advising petitioner of the right to proceed pro se or by new
counsel. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007).
[W]here counsel submits a petition and no- merit letter that do satisfy the technical demands of Turner/Finley, the court - trial court or this Court - must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny at least instruct
Id. (citation omitted).
-8- J-S47011-14
As referenced above, Appellant challenges the sufficiency of Attorney
Turner/Finley no-merit letter. Pro Se Response at 1.
However, he does so by arguing that the standards governing withdrawal of
counsel from a direct appeal as required by Anders, supra, and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), apply. Id.
first error is that [Attorney Belli] filed a no-merit letter to this Court instead 5 of an Id.
confusion stems from his interpretation of Santiago as applying to all
appeals as opposed to only direct appeals. As the instant appeal is from a
final order in a collateral challenge to his judgment of sentence through the
PCRA, the afore-described Turner/Finley standards apply. See Pitts,
supra.
Instantly, we conclude that Attorney Belli has complied with the
requirements of Turner/Finley. Specifically, Attorney Belli Turner/Finley
letter details the nature and extent of his review, addresses the claims
Appellant raised in his amended PCRA petition and Rule 1925(b) Statement,
and determines that the issues lack merit. Attorney Belli provides a ____________________________________________ 5 One distinction between an Anders brief and a Turner/Finley no merit letter is that on direct appeal counsel must discuss all issues arguably supporting an appeal, while in collateral proceedings counsel must discuss all issues a petitioner wishes to raise. Wrecks, supra, 720-721. Hence, applying Anders criteria, Appellant avers Attorney Belli was ineffective for not spotting an issue, i.e. Appellant now claims has arguable merit even though it was not included in his Rule 1925(b) statement as an issue he wished to raise. As such, this issue is waived for our consideration on appeal.
-9- J-S47011-14
Additionally, Attorney Belli served Appellant with a copy of the petition to
withdraw and Turner/Finley brief, advising Appellant that, if Attorney Belli
was permitted to withdraw, Appellant had the right to proceed pro se or with
privately retained counsel. We proceed, therefore, to conduct an
.
pro se response
alleg
When reviewing a claim of ineffective assistance of counsel, we apply the
following test, first articulated by our Supreme Court in Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or
him.
[T]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for
have been different.
- 10 - J-S47011-14
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). tablish any prong of
Commonwealth v.
Birdsong, 24 A.3d 319, 330 (Pa. 2011).
the Turner/Finley letter, which pertain to his allegations of trial counsel
ineffectiveness for failing to investigate, raise or develop certain issues 6 Appellant
known to the
was ineffective assistance of trial counsel not to raise the issue. PCRA
Petition, 3/26/12, at 10, ¶ 30.
statutory:
[W]henever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues.
50 P.S. § 7402(a). In order to establish incompetence, an appellant has the burden of ____________________________________________ 6
second and fourth questions. We therefore address them coordinately.
ineffectiveness into an allegation of ineffectiveness of direct appeal counsel.
- 11 - J-S47011-14
proving that he was either unable to understand the nature of the proceedings against him or to participate in his own defense.
In re R.D., 44 A.3d 657, 665 (Pa. Super. 2012) (citation omitted), appeal
denied, 56 A.3d 398 (Pa. 2012).
Instantly, Appellant, in his PCRA petition made no averments that he
was incompetent, that he was unable to understand the proceedings, or that
he could not assist in his defense. He merely alleges that circumstances at
trial suggested there was a question of his competency, but those
circumstances are not identified.7 Appellant also, did not identify any
experts prepared to testify on the issue. Further the PCRA court noted that
the record, including colloquies with Appellant belied his incompetency claim.
Trial Court Opinion, 5/21/13, at 6. Accordingly, we conclude the PCRA court
did not err in determining there were no material issues of fact relative to
the effective assistance of trial and appellate counsel concerning their failure
proffered no basis to conclude a material issue of fact exists, relative to the
merits of the underlying issue. See Wah, supra.8
____________________________________________ 7
PCRA Petition, 3/26/12, at 10, ¶ 30.
8 To the extent Appellant alleges trial court error in failing to act sua sponte in holding a competency hearing as a basis for PCRA relief, the claim fails as waived for failure to raise the issue on direct appeal. See Commonwealth (Footnote Continued Next Page)
- 12 - J-S47011-14
In his first and fourth issues on appeal, Appellant makes a similar
claim of ineffectiveness of trial counsel for failing to investigate, develop, or
possible
diminished capacity defense. Turner/Finley Letter at 13, 20. In this
at 5, ¶ 16. Appellant f
medication, testimony from various friends and family, jail records will
Id. obtained the
background data, he would have been able to present testimony that
Id.
would have provided diminished capacity and unreasonable belief at the
Id. at 8, ¶ 26.9
_______________________ (Footnote Continued) v. Smith, 17 A.3d 873, 903 (Pa. 2011), cert. denied, Smith v. Pennsylvania, 133 S. Ct. 240 (2012). 9 The PCRA court determined that this issue lacked merit because diminished capacity defense is only available to defend a charge of first-degree murder.
available only as a defense to first-degree murder []. Likewise, it is not - Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super. 2007) (citations omitted). However, we have explained that the specific intent element for attempted murder is identical to first-degree murder. Commonwealth. v. Spells, 612 A.2d 458, 461 n.5 (Pa. Super. 1992); In (Footnote Continued Next Page)
- 13 - J-S47011-14
preceding issue.
Diminished capacity is an extremely limited defense, which requires extensive psychiatric testimony establishing a defendant suffered from one or more mental disorders which prevented him from formulating the specific intent to kill. Only where a defendant admits liability and contests the degree of guilt is a diminished capacity defense available.
Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003) (citations
actions or acted impulsively is irrelevant to specific intent to kill, and thus is
not admissible to Commonwealth
v. Sepulveda, 55 A.3d 1108, 1122
PCRA petition did not identify with any specificity a mental illness or disorder
that affected his ability to form the specific intent to kill. His generic
material issue of fact in the absence of any proffer of expert psychiatric
testimony on the subject. See id.
_______________________ (Footnote Continued) re R.D., supra at 678. Thus, diminished capacity is a defense available to a charge of attempted murder. See Commonwealth v. Rovinski, 704 A.2d 1068, 1071-1072 (Pa. Super. 1997) (involving an appeal after this Court
defense claim to a charge of attempted murder), appeal denied, 723 A.2d 1024 (Pa. 19 Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).
- 14 - J-S47011-14
Appellant has included in the certified record various medical records
pertaining to his traumatic head injury and recovery from 2005. These
abil
condition at the time he shot the four victims three years later. 10 In light of
assistance of counsel relative to developing a defense of diminished
capacity, we conclude the PCRA court did not err or abuse its discretion in
See Commonwealth v.
McLaurin, 45 A.3d 1131, 1137 (Pa. Super. 2012), appeal denied, 65 A.3d
413 (Pa. 2013).
assistance of trial counsel for failing to investigate and present witnesses for
his defense. Turner/Finley Letter at 18. We have described a PCRA
in presenting this type of claim as follows.
to testify does not constitute ineffectiveness per se. Commonwealth v. Cox, 603 Pa. 223, 267, 983 A.2d establishing whether defense counsel was ineffective for failing to call witnesses, a defendant must prove the witnesses existed, the witnesses were ready and
____________________________________________ 10 nd accounts of its effect on
father. N.T., 3/24/09, at 19-20.
- 15 - J-S47011-14
testimony prejudiced petitioner and denied him a fair Id. at 268, 983 A.2d at 693.
Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. Super. 2011).
Further, a petitioner must provide proof of the availability of the witness, his
or her willingness to testify and the substance of the proposed testimony by
including an appropriate affidavit or other proof with the PCRA petition.
McLaurin, supra.
Dennis, 950 A.2d 945, 960 (Pa. 2008). Nevertheless, a similar threshold
testimony[,] Appellant cannot demonstrate prejudice sufficient to establish
ineffectiveness of tr Id. at 965.
witness to the assault of the Complainants against [Appellant] who was not
the []
PCRA petition, 3/26/12, at 12,
¶¶
availability or willingness to tes
supposed testimony is averred or supported in an affidavit. Absent these
- 16 - J-S47011-14
pleading requirements, we discern no error or abuse of discretion in the
dismissal of this claim without a hearing.11
In his fifth issue, Appellant alleges trial counsel was ineffective for not
reviewing crime scene photos that Appellant contends could have
contradicted trial testimony of Commonwealth witnesses. Turner/Finley
Letter at 20. Appellant did not include this issue in his PCRA petition,
raising it for the first time in his Rule 1925(b) statement. -settled
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011)
(internal quotation marks and citation omitted), appeal denied, 30 A.3d 487
(Pa. 2011). Accordingly, we conclude Appellant has waived this issue, and is
due no relief.
In his seventh issue,
that his issues lacked merit. Turner/Finley Letter at 22. Appellant argues,
s basis, he could have
timely alleged ineffectiveness of PCRA counsel in failing to rectify the afore-
e.g., failing to provide
____________________________________________ 11 Appellant only identified potential witnesses, albeit without any supporting material, for the first time in his Rule 1925(b) statement.
- 17 - J-S47011-14
mental health records and failing to submit affidavits of witnesses. 12 Id.
Additionally, in his response to
ineffectiveness for, in turn, failing to raise an issue contesting the
Pro Se
Response to Turner/Finley Letter at 2-4. None of these issues were raised
before the PCRA court in the first instance.
In Commonwealth v. Henkel, 90 A.2d 16 (Pa. Super. 2014) (en
banc), this Court conducted an exhaustive review of Pennsylvania law
regarding review of PCRA counsel ineffectiveness claims for the first time on
appeal. The Henkel Court concluded that issues of PCRA counsel
notice or in a serial PCRA petition. Id. at 29. We recognize that Appellant
was still represented by PCRA counsel at the time the Rule 907 notice was
issued and that the PCRA time bar may be an obstacle to future PCRA
petitions. However, these factors do not alter the aforesaid requirement.
for the first time on appeal renders any effective enforcement of the rule-
____________________________________________ 12 At the time the PCRA court sent its two Rule 907 notices of its intent to dismiss, Appellant was represented by counsel. Additionally, the Commonwealth had filed a motion to dismiss reciting the above discussed deficiencies in Ap
- 18 - J-S47011-14
counsel ineffectiveness are reviewable in this appeal.
without merit, waived, or premature. Additionally, finding Attorney Belli
compliant with the Turner/Finley requirements, we grant his motion to
withdraw as counsel. Finally, discerning no error or abuse of discretion by
PCRA petition without a hearing.
Order affirmed. Motion to withdraw granted.
Judge Olson joins the majority.
Judge Wecht concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/26/2014
- 19 -