Com. v. Kebede, E.

• Court: Superior Court of Pennsylvania
• Decided: February 20, 2015
• Docket: 1228 MDA 2014
• Status: Unpublished

Opinion

J-S73006-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

EMRU KEBEDE,

Appellant No. 1228 MDA 2014

Appeal from the PCRA Order June 27, 2014 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003556-2007

BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 20, 2015

Emru Kebede appeals from the June 27, 2014 order denying him PCRA

relief. Counsel has filed a petition to withdraw. We grant that petition and

affirm.

The facts of the crime in question were outlined by our Supreme Court

in Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011). On May 2, 2007,

Appellant, who was then sixteen years old, was with Abraham Sanchez,

Lorenzo Schrijver, and Robert Michael Baker at the home of Baker’s fiancée,

Susan Bass. Sanchez and Schrijver had a firearm. The four men decided to

either burglarize a home or break into a car to obtain money for a

marijuana-selling business in which Sanchez and Schrijver were engaged.

The four cohorts all put on gloves and started to drive around together to

scout for a suitable location to commit a crime. Schrijver spied a house J-S73006-14

located in an isolated area and an elderly man, Ray Diener, seated alone

inside the residence. After parking the car, Schrijver approached the house

and rang the doorbell while Appellant, Baker, and Sanchez hid. When Mr.

Diener answered the door, Schrijver asked to use the telephone and told the

victim that his car was broken down. Mr. Diener returned inside his house

to retrieve his cellular telephone. Schrijver handed the gun to Sanchez and

prepared to attack the victim.

When the victim returned, Schrijver took the phone while Sanchez

revealed himself, pointed the gun at Mr. Diener, and told him to lie down.

The victim grabbed the gun and screamed. While the victim and Sanchez

wrestled for the weapon, it discharged and a bullet hit the victim in the hip.

Mr. Diener fell and began to cry and plead for help. Baker fled toward the

car, and Appellant followed him. Schrijver stayed behind and told Sanchez

to shoot the man again; Sanchez complied.

By that time, the victim’s wife, Barbara, had awakened due to her

husband’s screams and came outside. She saw her husband on the ground

and then ran inside her home, locked the doors, called the police, and

reported that two men were attempting to enter her home. Sanchez again

shot the victim, who was declared dead at the scene, and the four cohorts

left the scene in their car. Appellant was later interviewed by police and

gave an extensive statement outlining his involvement in these events. He

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informed police that, prior to the crime, Sanchez and Schrijver had bragged

about shooting at people who had been disrespectful to them.

On September 10, 2010, Appellant was found guilty of second-degree

murder, and he subsequently was sentenced to the applicable mandatory

sentence of life imprisonment without parole. On direct appeal, we affirmed,

and our Supreme Court denied allowance of appeal. Commonwealth v.

Kebede, 23 A.3d 1080 (Pa.Super. 2011) (unpublished memorandum),

appeal denied, 27 A.3d 1015 (Pa. 2011).

Appellant filed a timely pro se PCRA petition, counsel was appointed,

and counsel filed an amended petition. Therein, one issue was raised: that

Appellant’s sentence of life imprisonment without parole was

unconstitutional under Miller v. Alabama, 132 S.Ct. 2455 (2012)

(mandatory sentence of life imprisonment without parole constitutes cruel

and unusual punishment if homicide offender is a minor when crime

occurred). Counsel filed a second amended PCRA petition wherein he

maintained that Miller applied retroactively. This appeal followed the denial

of PCRA relief.

Initially, we note that appellate counsel has petitioned this Court to

withdraw pursuant to the mandates of Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc). These cases govern the procedure for

withdrawal of court-appointed counsel for purposes of post-conviction

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proceedings. “[I]ndependent review of the record by competent counsel is

required before withdrawal is permitted” in the PCRA setting.

Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa.Super. 2011) (quoting

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009)). That

independent review requires:

1) A “no-merit” letter by PCRA counsel detailing the nature and extent of his review;

2) The “no-merit” letter by PCRA counsel listing each issue the petitioner wished to have reviewed;

3) The PCRA counsel's “explanation”, in the “no-merit” letter, of why the petitioner's issues were meritless;

4) The . . . court conducting its own independent review of the record; and

5) The . . . court agreeing with counsel that the petition was meritless.

Widgins, supra at 818 (quoting Pitts, supra at 876 n.1). In addition,

In Commonwealth v. Friend, 896 A.2d 607 (Pa.Super. 2006), [abrogated on other grounds by Pitts, supra,] this Court had imposed an additional requirement for counsel seeking to withdraw in collateral proceedings:

[W]e here announce a further prerequisite which must hereafter attend an application by counsel to withdraw from representing a PCRA petitioner, namely, that PCRA counsel who seeks to withdraw must contemporaneously serve a copy on the petitioner of counsel's application to withdraw as counsel, and must supply to the petitioner both a copy of the “no-merit” letter and a statement advising the petitioner that, in the event that the court grants the application of counsel to withdraw, he or she has the right

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to proceed pro se or with the assistance of privately retained counsel.

Id. at 614 (emphasis in original).

Widgins, supra at 818. This requirement, which has not been abrogated by

our Supreme Court, is still applied by the Superior Court. Id.; see also

Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012).

In the present case, counsel has filed a brief and a petition to withdraw.

In his petition to withdraw, counsel outlines that he carefully reviewed the

record, researched all issues, and concluded that there are no meritorious

questions to present on appeal. The filed brief, which is labeled as a

Turner/Friend statement, constitutes a no-merit letter, sets forth the issue

in the amended PCRA petition and establishes the lack of merit of that issue.

Attached to the brief is a copy of a letter that counsel mailed to Appellant.

That letter detailed that counsel sent Appellant a copy of the brief, informed

Appellant that counsel was seeking to withdraw, and advised Appellant that

he had the right to represent himself and proceed pro se or to hire another

lawyer. Hence, counsel has satisfied the mandates applicable to him.

We now examine the issue raised on appeal: “Whether the post-

conviction court erred when it denied relief on Appellant's claim that the

mandatory sentence of life imprisonment without parole was imposed

illegally?” Appellant’s brief at 2. Before reaching its merits, we outline the

applicable standard of appellate review:

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An appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error. The scope of review 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 trial level.

Commonwealth v. Freeland, 2014 WL 6982658, *4 (Pa.Super. 2014)

(citation omitted).

In the present case, Appellant was a juvenile when he committed the

crime in question and was subject to a mandatory sentence of life

imprisonment without parole. As noted, Miller prohibits the imposition of

such a sentence on a juvenile homicide offender. However, as counsel

points out in his brief, Miller has been denied retroactive application, and

hence, that decision does not apply to a juvenile PCRA petitioner.

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant

currently cannot obtain relief under Miller.

Appellant filed a pro se response to counsel’s petition to withdraw. He

avers that PCRA counsel’s withdrawal request herein cannot be granted since

PCRA counsel failed to address the merits of the following issues, which were

raised in Appellant’s pro se PCRA petition: 1) trial counsel was ineffective for

failing to call Appellant to testify on his own behalf; 2) trial counsel was

ineffective when he did not call character witnesses on Appellant’s behalf;

and 3) Appellant was entitled to a new trial under Batson v. Kentucky, 476

U.S. 79 (1986), “in regard to the exclusion of African American jurors

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represented at defendant’s trial.” Objection to Application to Withdraw as

Counsel in re of Emru Kedebe, 12/13/14, at 2.

It is settled, “No defendant has a right to hybrid representation, either

at trial or on appeal.” Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa.

2013) (emphasis in original) (citing Commonwealth v. Ellis, 626 A.2d

1137, 1139 (Pa. 1993); Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.

2010)). Based upon this principle, we do not examine the issues raised in

pro se filings of a defendant who has been appointed counsel in order to

ascertain whether counsel is permitted to withdraw. Commonwealth v.

Pursell, 724 A.2d 293, 302 (Pa. 1999) (“We will not require courts

considering PCRA petitions to struggle through the pro se filings of

defendants when qualified counsel represent those defendants.”).1 As the

only issue that was presented to and considered by the PCRA court during

the PCRA proceedings was the one contained in the amended and second

amended petition, counsel, in this appeal, was obliged only to establish the

lack of merit of that single issue. We accept counsel’s position that he

carefully reviewed the record, researched all issues, and concluded that

there are no meritorious questions to present on appeal. Since the PCRA

petition was amended, we presume that counsel weighed the other issues ____________________________________________

1 This aspect of Pursell’s holding was not impacted by subsequent case law regarding our ability to review allegations of PCRA counsel’s ineffectiveness when such ineffectiveness is raised for the first time on appeal.

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contained in the pro se petition and decided not to pursue them based upon

his legal assessment of their chances of success.

Indeed, the record establishes: 1) Appellant had a history of

involvement in the juvenile system; 2) there were reports and records in the

Mount Joy Borough Police Department outlining police interactions with

Appellant; 3) Appellant had numerous disciplinary problems in school and

was expelled from one high school; 4) Appellant and his mother were in

counseling; and 5) Appellant withdrew his request to have this matter

decertified to the juvenile system due to his troubled past. Additionally, as

noted supra, Appellant’s detailed statement to police about his participation

in these crimes was introduced at trial. Thus, the record readily supports

both trial counsel’s decision not to have Appellant testify as well as the lack

of a viable defense based upon Appellant’s character. Additionally, a

transcript of voir dire indicates that the jury pool did not contain any African

Americans and that the pool in that county normally did not contain African

Americans. N.T. Voir Dire, Vol. I, at 9/3/09, 28. Thus, there were no

African Americans to strike.

Furthermore, any allegation that PCRA counsel was ineffective for filing

an amended PCRA petition that omitted the three listed issues cannot be

entertained in this appeal since Appellant never raised any allegation of

PCRA counsel’s ineffective in the PCRA court. Commonwealth v. Henkel,

90 A.3d 16 (Pa.Super. 2014) (en banc) (citing Commonwealth v. Jette, 23

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A.3d 1032, 1044 n. 14 (Pa. 2011); Commonwealth v. Hill, 16 A.3d 484,

497 n. 17 (Pa. 2011); Commonwealth v. Colavita, 993 A.2d 874, 894 n.

12 (Pa. 2010); Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009)).2

In his response to counsel’s request to withdraw, Appellant observes

that the retroactivity of Miller is under consideration by the United States

Supreme Court. Appellant continues that counsel’s petition to withdraw is

therefore premature since that High Court may decide that Miller is indeed

retroactive. If the United States Supreme Court decides that Miller is

retroactive, Appellant can again seek PCRA relief. 42 Pa.C.S. §

9545(b)(1)(iii) (outlining that a PCRA petition can be filed if the United

States Supreme Court announces a new constitutional right and makes that

right retroactive). At this point, however, the retroactivity issue is settled in

Pennsylvania, and we cannot disagree with counsel’s assessment that

Appellant presently is ineligible to obtain relief under Miller.

Our independent review of the record confirms that there are no

meritorious issues that can be raised in this appeal. Hence, we affirm.

____________________________________________

2 We do observe that Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), offer Appellant an opportunity for federal habeas corpus review.

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Petition of R. Russell Pugh, Esquire, to withdraw is granted. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/20/2015

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