Com. v. Holden, R.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

RAHMIN HOLDEN Appellant No. 1859 EDA 2015

Appeal from the PCRA Order entered June 5, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0014951-2007

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY STABILE, J.: FILED JANUARY 19, 2017 Appellant, Rahmin Holden, appeals pro se from the June 5, 2015 order entered in the Court of Common Pleas of Philadelphia County, dismissing his petition for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.

Following a jury trial, Appellant was convicted on July 14, 2009 of first-

degree murder and various other crimes arising out a shooting on the 6600 block of Upland Street in Philadelphia.1 Appellant was sentenced on the

same day to a mandatory term of life imprisonment. The trial court denied

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*

Former Justice specially assigned to the Superior Court.

1 The guilty verdict was rendered at the conclusion of Appellant’s second trial. His first trial ended in a hung jury.

Appellant’s post-sentence motions and Appellant pursued an appeal to this Court. On June 1, 2011, we affirmed his judgment of sentence and on August 21, 2012, our Supreme Court denied his petition for allowance of appeal.

On September 18, 2012, Appellant filed a timely pro se PCRA petition.

Counsel was appointed and subsequently filed a Finley2 no-merit letter and a motion to withdraw as counsel. On March 23, 2015, following a review of the pleadings and an independent review of the record, the PCRA court issued a notice of intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.3 The notice included a directive to Appellant to submit any information to supplement or establish his claim within 20 days of the date of the notice. Appellant requested an extension for filing a response and the PCRA court granted that request. Appellant filed his response within the time allotted. By order entered on June 5, 2015, the PCRA court dismissed Appellant’s petition and granted counsel’s motion to withdraw. This timely appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

3 We note that the judge for the PCRA proceedings was also the presiding judge for Appellant’s trial.

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In his Rule 1925(b) statement of errors complained of on appeal, Appellant raised three errors, i.e., that the PCRA court erred in adopting PCRA counsel’s no-merit letter because counsel was ineffective for failing to investigate potential alibi witnesses and for failing to call the alibi witnesses; that PCRA counsel could not have made a conscientious examination of the record or consulted with Appellant as reflected in the no-merit letter; and that Appellant had three additional meritorious issues to raise in an amended petition.4 Rule 1925(b) Statement of Errors Complained of on Appeal, 10/22/15, at 1-2. In its Rule 1925(a) opinion, the PCRA court rejected Appellant’s first two claimed errors based on the court’s independent review of the record and found the third error waived because Appellant failed to raise it in his response to the Rule 907 notice. PCRA Court Rule 1925(a) Opinion, 11/13/15, at 1-13.

In his brief filed with this Court, Appellant presents five issues for our consideration. For ease of discussion, we have rearranged them in an attempt to mirror the errors asserted in Appellant’s 1925(b) statement as follows:

1. Whether the [PCRA] court erred in dismissing [Appellant’s]

claims that trial counsel was ineffective for failing to investigate and call potential alibi witnesses to testify?

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4 Although Appellant suggested he had three additional meritorious issues to be raised in an amended petition, he actually listed five issues in his Rule 1925(b) statement.

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2. Whether the [PCRA] court erred by failure to conduct [its]

own full independent review of the record [before] dismissing [Appellant’s] PCRA [petition] when meritorious issues existed within the record?

3. Whether the [PCRA] court erred by dismissing [Appellant’s]

PCRA [petition] pursuant to counsel[’]s “no merit letter” he filed, which failed to meet the standard procedures for a “no merit letter?”

4. Whether PCRA counsel should [have] filed a “no merit letter”

when he failed to raise and address a substantial amount of issues [Appellant] “raised” and asked to have amended to his PCRA petition?

5. Whether PCRA counsel was ineffective for failing to properly amend [Appellant’s] PCRA petition by neglecting to mention any of [Appellant’s] constitutional claims, therefore deeming them insufficiently pleaded and the PCRA court erred/abused [its] discretion for denying petition?

Appellant’s Brief at 3.

We begin by setting forth our scope and standard of review. As our Supreme Court has explained, “In PCRA proceedings, an appellate court’s scope of review is limited by the PCRA’s parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court’s findings are supported by the record and free of legal error. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009) (citing Commonwealth v. Strong, 761 A.2d 1167, 1170 n. 3 (Pa. 2000)).

In his first issue, Appellant argues PCRA court error for dismissing his claim of trial counsel ineffectiveness for failing to investigate and call

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potential alibi witnesses to testify. This issue was preserved in the first error asserted in Appellant’s 1925(b) statement.5 At issue here is the alibi testimony Appellant contends would have been provided by two of his cousins, Lanea Staten and Brianna Burrell, who were 16 and 12 years old, respectively, at the time of the murder for which Appellant was convicted. The PCRA court provides a thorough discussion of the testimony the girls would have offered and explains that trial counsel had a reasonable basis for not calling either witness, especially in light of more favorable but conflicting evidence offered at trial by the girls’ mother. See PCRA Court Rule 1925(a) Opinion, 11/13/15, at 5-11. We find the PCRA court’s findings in this regard are supported by the record and are free of legal error. We conclude Appellant is not entitled to any relief on his first issue and we hereby adopt the trial court’s discussion of this issue as our own and incorporate it herein by reference.

In his second issue, Appellant alleges PCRA court error for failure to conduct its own meritorious review of the record before dismissing Appellant’s PCRA petition. In his Rule 1925(b) statement, Appellant asserted that PCRA counsel could not have made a conscientious examination of the record and notes of testimony or consulted with

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5 Issues not preserved in an appellant’s 1925(b) statement are waived. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

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Appellant as suggested in the No-Merit Letter but does not contend that the PCRA court failed to conduct its own review. Although the issue is likely properly considered waived, we also recognize that the first error raised in Appellant’s 1925(b) statement implies that the PCRA court erred in adopting the No-Merit Letter and in granting counsel’s petition to withdraw. To the extent Appellant’s contention could be interpreted to reflect a failure on the part of the PCRA court to conduct its own meritorious review, we shall address the issue.

Our willingness to consider the issue, however, does not aid Appellant.

Instead, our review leads to the inescapable conclusion that the PCRA court did conduct an independent review of the record, as indicated in the 1925(a) opinion. PCRA Court Rule 1925(a) Opinion, 11/13/15, at 2. The PCRA court’s summaries of the procedural history and factual background are a reflection of that. See id. at 1-4. Appellant’s suggestions that either PCRA counsel or the PCRA court failed to conduct a thorough examination of the record are belied by counsel’s No-Merit Letter and by the PCRA court’s 1925(a) opinion. To the extent Appellant’s second issue has been properly preserved, it fails for lack of merit.

In his third and fourth issues, Appellant attacks the No-Merit Letter itself, contending it did not comply with the requirements for a no-merit letter and failed to raise issues Appellant requested counsel to address in an amended petition. In essence, Appellant is presenting the third error

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asserted in his 1925(b) statement, i.e., that counsel failed to include additional meritorious issues in an amended petition. However, as the PCRA court properly concluded, those additional issues were waived for Appellant’s failure to raise those claims in response to the court’s Rule 907 Notice. PCRA Court Rule 1925(a) Opinion, 11/13/15, at 11-13. As such, we likewise shall not consider them. Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012).6 Therefore, Appellant’s third and fourth issues do not afford him any basis for relief.

In his fifth issue, Appellant argues that PCRA counsel was ineffective for failing to amend Appellant’s PCRA petition to assert any of his constitutional claims. As this issue was not preserved in Appellant’s 1925(b) statement, it is waived. See Pa.R.A.P. 1925(b)(4)(vii); Hill, 16 A.3d at

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6 Appellant’s response to the PCRA court’s Rule 907 Notice focuses on the failure of trial counsel to call the two alibi witnesses identified above. Appellant also refers to trial counsel’s failure “to investigate non-witness whereabouts.” Response to Rule 907 Notice, 5/21/15, at 3. However, the alleged “non-witness” is not identified in the response. To the extent Appellant attempted to refer to eyewitness, Angelic Kirkman Smith, PCRA counsel explained that the witness was unavailable at trial and that her preliminary hearing testimony was properly admitted at trial in accordance with Pa.R.E. 804(b)(1) and Commonwealth v. Bazemore, 614 A.2d 684, 685 (Pa. 1992) (unavailable witness’ prior recorded testimony from a preliminary hearing is admissible at trial and will not offend the right of confrontation, provided the defendant had counsel and a full opportunity to cross-examine that witness at the prior proceedings). Therefore, even if Appellant can be found to have preserved that issue in his Rule 907 response, it does not provide any basis for relief.

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494.7 Even if not waived, Appellant has not provided any clue as to the nature of his “constitutional claims.” While he did check the box on the PCRA petition claiming eligibility for relief based upon a constitutional violation, PCRA Petition, 9/18/12, at 2, the only other reference to constitutional violations appears on page 7 of his petition where he simply asked that the PCRA court consider violations of the 6 th and 14th Amendments to the United States Constitution. Id. at 7. Nowhere in the petition does Appellant provide any insight into the nature of any alleged constitutional violations. In his brief, Appellant mentions the Sixth Amendment and Due Process in the context of PCRA counsel’s failure to raise issues not preserved in Appellant’s response to the Rule 907 Notice and trial counsel’s failure to call Appellant’s cousins as alibi witnesses, but does not otherwise develop any constitutional arguments. See Appellant’s Brief at 13-15; 21-24. To the extent Appellant might be referring to the inability to confront unavailable eyewitness Angelic Kirkman Smith whose preliminary hearing testimony was read to the jury, that issue was addressed and dismissed by PCRA counsel, and the PCRA court found it waived because

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7 In Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003), this Court recognized that if, on a claim of PCRA counsel’s ineffectiveness first raised on appeal, we determine there is a reasonable probability that, but for PCRA counsel’s act or omission, the result of the PCRA proceeding would have been different, we would be required to remand for a new PCRA hearing. No such reasonable probability exists here. See also Commonwealth v. Burkett, 5 A.3d 1260, 1273 (Pa. Super. 2010).

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Appellant did not raise the issue in response to the Rule 907 Notice. Finley No-Merit Letter, 2/4/15, at 4; PCRA Court Rule 1925(a) Opinion, 11/13/15, at 12-13.8 Further, we note that Appellant did not even mention the issue of the unavailable witness in his PCRA petition. Rather, the only facts offered in support of the petition related to trial counsel’s failure to “investigate, interview or subpoena” alibi witnesses Lanea Staten and Brianna Burrell. Id. at 3. Appellant is not entitled to any relief based on his fifth issue.

We conclude that the PCRA court’s findings are supported by the record and are free of legal error. Therefore, we shall affirm the order dismissing Appellant’s PCRA petition. In the event of further proceedings, the parties shall attach a copy of the PCRA Court’s Rule 1925(a) Opinion to their filing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/19/2017

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8 As reflected in n. 6, supra, to the extent Appellant may have asserted the unavailable eyewitness issue in his Rule 907 response, the issue does not provide any basis for relief.

Circulated 12/20/2016 12:37 PM