J-S57013-14 J-S57014-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYREE A. LAWSON, : : Appellant : No. 3005 EDA 2013
Appeal from the Order entered October 17, 2013, Court of Common Pleas, Montgomery County, Criminal Division at No. CP-46-CR-0000542-2009
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYREE A. LAWSON, : : Appellant : No. 3008 EDA 2013
Appeal from the Order entered October 7, 2013, Court of Common Pleas, Montgomery County, Criminal Division at No. CP-46-CR-0000542-2009
BEFORE: DONOHUE, MUNDY and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 19, 2014
first dismissing his petition for relief pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-
herein, we affirm both orders. J-S57013-14 J-S57014-14
appeal, this Court provided the following brief factual and procedural history
of the case:
Lawson was charged with various crimes from a vicious home invasion robbery that occurred on June 12, 2006. Early that morning, Nancy Hevener went
truck while he was showering. Upon opening the door to re-enter her home, she was assaulted from behind by an assailant with a stocking over his face. As the assailant rushed post her into her home, Nancy screamed to her husband. Upon responding
kitchen charging him. A melee ensued, with the assailants striking both Heveners repeatedly, and
After a lengthy investigation, Lawson was linked to the crime in various ways including DNA evidence, and was arrested on January 13, 2009. Lawson was represented by a series of counsel, but on May 4, 2010, elected to waive his right to counsel and to proceed pro se. Thereafter, Lawson filed several pro se pre- pre-trial motions, and a jury ultimately found Lawson guilty of three counts of robbery-serious bodily injury [18 Pa.C.S.A. § 3701(a)(1)], burglary [18 Pa.C.S.A. § 3502], conspiracy to commit robbery [18 Pa.C.S.A. § 903], and conspiracy to commit burglary [18 Pa.C.S.A. § 903]. The trial court sentencing Lawson to an aggregate term of imprisonment of nineteen to sixty years, to run consecutively to any - sentence motions were denied by the trial court, and this timely appeal followed.
Commonwealth v. Lawson, 1705 EDA 2011 (Pa. Super., August 7, 2012)
(unpublished memorandum).
-2- J-S57013-14 J-S57014-14
four issues: (1) whether the trial court erred in dismissing his suppression
motion as untimely; (2) whether the trial court properly dismissed his
motion pursuant to Rule 600 of the Pennsylvania Rules of Criminal
misconduct were waived due to an ambiguous presentation of the issue in
his concise statement of the questions on appeal pursuant to Rule 1925 of
the Pennsylvania Rules of Appellate Procedure; and (4) whether Lawson
waived his discretionary sentencing issues. As at trial, Lawson represented
himself pro se during his direct appeal.
On June 18, 2013, Lawson filed a pro se PCRA petition, and on July 2,
2013, he filed an amended PCRA petition. In these filings, Lawson raised six
issues:
(1) He was denied a fair trial because the Commonwealth introduced fabricated evidence at trial (the DNA evidence);
(2) He was denied a fair trial because the Commonwealth knowingly introduced perjured testimony at trial;
(3) He was denied his constitutional right to litigate the issues in his suppression motion;
(4) He was denied the effective assistance of counsel at his formal arraignment on April 20, 2009;
(5) The colloquy of record pursuant to which he waived his right to counsel was insufficient and defective,
-3- J-S57013-14 J-S57014-14
and thus he was deprived of his constitutional right to counsel at trial; and
(6) His sentence was illegal because the trial court relied on impermissible sentencing factors and because various of his crimes merged for sentencing purposes.
Amended PCRA Petition, 7/2/2013, at ¶ 3.
On June 24, 2013, the trial court appointed William McElroy, Esq.
petition. On September 3, 2013, Attorney McElroy, pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), filed a petition
to withdraw as counsel for Lawson with respect to the six issues set forth in
Attorney McElroy identified a separate issue of arguable merit, namely that
s sentence was illegal because Lawson was sentenced on two
counts of conspiracy even though the evidence showed that only one
conspiratorial relationship existed. On September 4, 2013, Attorney McElroy
filed a Motion to Modify Sentence. On September 16, 2013, the trial court
amended PCRA petition in 20 days pursuant to Rule 907 of the Pennsylvania
Rules of Criminal Procedure; (2) advising that it also intended to dismiss
Attorn
-4- J-S57013-14 J-S57014-14
respect to the six issues raised by Lawson, but not as to the separate
sentencing issue preserved in the Motion to Modify Sentence.1
On October 7, 2013, exactly 20 days after its Rule 907 notice of intent
around October 7, 2013, La
issues set forth in his Amended PCRA petition and also asserted a new issue
namely, that Attorney McElroy provided ineffective assistance of counsel
by making one or more false statements in his Finley letter relating to the
allegedly fabricated DNA evidence on the nylon stocking. On October 10,
2013, Lawson filed
court denied without prejudice by order dated October 17, 2013.
On October 29, 2013, Lawson filed notices of appeal from the trial
ction
1 During its review of the record, the trial court identified a separate sentencing issue, and on this same date (September 16, 2013) it resentenced Lawson on the conspiracy to commit robbery conviction to a term of 5 to 10 years of incarceration (rather than the 6 to 10 year term set
om this order has been filed.
-5- J-S57013-14 J-S57014-14
with his appeal from the October 7, 2013 order, Lawson presents the
following issues for our consideration and determination:
1. The PCRA court committed judicial error and/or abuse of discretion pursuant to Pa.R.Crim.P. 907(A) by its failure to independently review and address
DNA.
2. The PCRA court committed judicial error and/or abuse of discretion by its failure to independently review or address the meritorious PCRA claim of inadequate waiver of counsel colloquy.
3. The PCRA court committed judicial error and/or abuse of discretion by its failure to independently review or address the PCRA presented meritorious claim of being denied the Sixth Amendment right of counsel during a critical stage of the proceedings.
4. The PCRA court committed judicial error and/or abuse of discretion by its failure to independently
presented claims of illegal sentence .. and based its
ineffectiveness.
5. The trial court after issuing its pre-dismissal notice to dismiss denied [Lawson] of a full and fair opportunity to contest PCRA co
proceedings without addressing the timely filed response.
-6- J-S57013-14 J-S57014-14
-5.2 In connection with his appeal from the October 17,
2013 order, Lawson presents a single issue for our review:
1. Whether the trial court committed an abuse of discretion and/or judicial error of law by its failure to follow the statutory construction of 42 Pa.C.S.A. § 6503(b) regarding the filed petition for a writ of the court without addressing the grounds for relief, dismissed that application as being a second and subsequent PCRA petition and thereby failing to address the illegality
turn.
For his first issue on appeal, Lawson contends that the trial court erred
appellate brief, Lawson specifically refers to two instances of the
against him without correcting his testimony that he did not receive a deal
from the Commonwealth (in the form of a sentence below the guideline
recommendations in exchange for his testimony). Id. at 13. Second,
Lawson insists that at trial the Commonwealth introduced into evidence a
2 We have renumbered the issues for ease of disposition.
-7- J-S57013-14 J-S57014-14
nylon stocking found at the crime scene with his DNA on it, even though it
had forcibly seized this evidence with a fraudulent search warrant. Id.
upon his own failures while representing himself at trial and on direct
appeal. Trial Court Opinion, 12/5/2013, at 6-8. We must agree, for at least
two reasons. First, based upon our review of our memorandum decision on
direct appeal, the specific claims Lawson now raises were previously litigated
pre-trial motion to suppress evidence, both because it was filed more than a
year after his arraignment and was thus patently untimely, and because it
was meritless since the search and arrest warrants in this case were amply
supported by probable cause. Lawson, supra, at 3-4. We also refused to
grant Lawson relief on his claims of prosecutorial misconduct because he
failed to frame any specific instances of the same in his Pa.R.A.P. Rule
1925(b) statement. Id. at 9-10.
As a result, both of the claims Lawson now raises in his first issue on
appeal, including the alleged subordination of perjured testimony and the
alleged use of fraudulently obtained evidence (the nylon stockings), were
previously litigated on direct appeal. Pursuant to section 9543(a)(3) of the
PCRA, issues previously litigated on direct appeal are not cognizable for relief
-8- J-S57013-14 J-S57014-14
under the PCRA. See, e.g., Commonwealth v. Tedford, 960 A.2d 1,
18 (Pa. 2008).
Moreover, to the extent that the two claims that Lawson now raises
under his first issue on appeal were not previously litigated on direct appeal,
o.
Section 9544(b) of the PCRA provides that an issue is waived for purposes of
42 Pa.C.S.A. § 9544(b); Commonwealth v. Brown, 872 A.2d 1139,
1154 (Pa. 2005).
pursuant to which he was permitted to represent himself pro se was
inadequate, is not cognizable under the PCRA for the same reason. This
issue could have been raised and litigated on direct appeal, but Lawson did
not do so. As a result, it is waived and cannot be raised at this time.
42 Pa.C.S.A. § 9544(b).
For his third issue on appeal, Lawson argues that the PCRA court failed
to review his claim that he was denied his Sixth Amendment right of counsel
during a critical stage of the proceedings. In its Ra.R.A.P. 1925(a) written
opinion, the PCRA court did not address the substance of this claim, noting
that Lawson did not identify
-9- J-S57013-14 J-S57014-14
question. Trial Court Opinion, 12/5/2013, at 7. In his appellate brief,
Lawson insists that the PCRA court knew or should have known that he was
.
Even if the PCRA court should have known that Lawson was referring
to his April 20, 2009 arraignment, no basis exists here for a potentially
meritorious ineffectiveness claim. By order dated March 31, 2009, the trial
ignment for April 20, 2009. At that
had entered his appearance on February 10, 2009 and filed an Omnibus Pre-
April 20, 2009, the trial court indicated that Lawson had waived the formal
arraignment and pled guilty to the charges against him.
pro se filings (including his appellate brief), are not
provided ineffective assistance of counsel when deciding to waive the formal
le 571 of the
Pennsylvania Rules of Criminal Procedure provides that a criminal defendant
represented by counsel may waive formal arraignment by filing a statement,
signed by both the defendant and counsel, indicating an intention to do so
and stating that the defendant understands, inter alia, the nature of the
- 10 - J-S57013-14 J-S57014-14
charges against him. Pa.R.Crim.P. 571(D). The docket in this case contains
no such filing.
Counsel is presumed to be effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel's performance was
deficient and that such deficiency prejudiced him. Commonwealth v.
Koehler, 36 A.3d 121, 132 (Pa. 2012) (citing Strickland v. Washington,
466 U.S. 668, 687 91 (1984)). To prove counsel ineffective, a PCRA
petitioner must demonstrate that: (1) the underlying legal issue has
arguable merit; (2) counsel's actions lacked an objective reasonable basis;
and (3) petitioner was prejudiced by counsel's act or omission. Id.
is not required to analyze the elements of an ineffectiveness claim in any
particular order of priority; instead, if a claim fails under any necessary
Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011).
To satisfy the prejudice prong of the tripartite test, the PCRA petitioner
counsel's error or omission, the result of the proceeding would have been
Commonwealth v. Ly, 980 A.2d 61, 73 (Pa. 2009). In this
case, Lawson has offered no basis for us to conclude that he suffered any
such prejudice as a result of the waiver of his formal arraignment (with or
- 11 - J-S57013-14 J-S57014-14
from the denial
warrant
affidavits of probable cause and the January 20, 2009 preliminary hearing
while Lawson was representing himself pro se. Lawson offers no explanation
as to any possible connection between the waiver of his formal arraignment
and any of these subsequent events. As such, he has not established that
he suffered any prejudice whatsoever as a result of the waiver of his formal
arraignment, and thus his ineffective assistance of counsel claim is
meritless.
For his fourth issue on appeal, Lawson contends that the PCRA court
erred in failing to consider his claims of illegality of sentence. In his
amended PCRA petition and appellate brief, Lawson claims that his sentence
was illegal in two ways. First, he argues that his sentence was too severe
because the trial court relied upon impermissible factors (including
misrepresentations of fact in the pre-sentence report as well as prior
convictions) when calculating his offense gravity score and prior record score
under the applicable Sentencing Guidelines. Second, he states that his two
- 12 - J-S57013-14 J-S57014-14
convictions for conspiracy should merge for sentencing purposes because
both were based upon a single conspiratorial agreement.
Sentencing Guidelines raises a question of the discretionary aspects of a
Commonwealth v. Keiper, 887 A.2d 317, 319 (Pa.
Super. 2005); Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.
sentence claims on direct review, concluding that Lawson, while acting as his
own counsel, waived all such claims by failing to include a Pa.R.A.P. 2119(f)
statement in in appellate brief. Lawson, supra
discretionary sentencing claims were thus previously litigated on direct
appeal and cannot be reasserted on PCRA review. To the extent that the
present discretionary claims were not raised on direct appeal, they are
waived for failure to do so. 42 Pa.C.S.A. § 9544(b).
As for his second claim, Lawson argues that his two conspiracy
convictions (to commit robbery and burglary) were based upon the same
conspiratorial agreement and thus should have merged for sentencing
purposes. This claim was preserved for appeal in the Motion to Modify
Sentence filed by Attorney McElroy on September 4, 2013.
In our consideration of this issue, we must first determine whether the
issue presented is one involving the illegality of sentence, such that it is non-
- 13 - J-S57013-14 J-S57014-14
waivable, Commonwealth v. Berry, 877 A.2d 479, 486 (Pa. Super. 2005),
appeal denied, 917 A.2d 844 (Pa. 2007), and thus may be considered now
during PCRA review. Our Supreme Court addressed this issue in
Commonwealth v. Andrews, 768 A.2d 309 (Pa. 2001). Andrews and a
co-conspirator appeared in the office at an apartment complex and inquired
as to the availability of rentals, and soon thereafter brandished weapons and
robbed those in the office. The next day, Andrews and his co-conspirator
used the same modus operandi again twice, robbing the leasing agents at
two other apartment complexes in about two hours. Id. at 309. The jury
convicted Andrews of five counts of robbery, two counts of criminal
conspiracy, and two counts of possessing instruments of crime. Id. at 311.
On appeal, Andrews argued that the two conspiracy convictions should
have merged for sentencing purposes. This Court treated Andrews'
argument as one implicating the legality of the sentence and affirmed,
concluding that separate sentencing was permissible because the robberies
charges involved separate robberies of different individuals at different
Id. at 312.
Our Supreme Court affirmed, but in so doing concluded that the
merger argument should not have been treated as one involving the
illegality of sentence but rather as a challenge to sufficiency of the evidence.
- 14 - J-S57013-14 J-S57014-14
Id. at 311-12. The Supreme Court began by pointing out that this Court
had previously treated the issue of single or multiple conspiracies in both
ways. Id. at 312 (comparing Commonwealth v. Rippy, 732 A.2d 1216,
1224-25 (Pa. Super. 1999) (legality of sentence), with Commonwealth v.
Herrick, 660 A.2d 51, 55 (Pa. Super. 1995) (sufficiency of the evidence)).
In resolving this discrepancy, the Supreme Court focused on the two
arguments offered by Andrews.
First, Andrews argued that multiple sentences violated constitutional
double jeopardy protections against multiple punishments for the same
offense. The Supreme Court indicated that for Andrews, the issue was
Id. at
Id.
Second, Andrews contended that 18 Pa.C.S.A. § 903(c) prohibits
separate sentences for the two conspiracy convictions.
§ 903. Criminal conspiracy
* * *
(c) Conspiracy with multiple criminal objectives.--If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple objectives are the object of the same agreement or continuous conspiratorial relationship.
- 15 - J-S57013-14 J-S57014-14
Andrews, 768 A.2d at 314. Again,
implicates a factual assessment of either the conspiratorial agreement or the
Id. As a result, the Supreme Court
concluded that the issue constitutes a challenge to the sufficiency of the
Id.3
Andrews, the present
issue relating to multiple sentences for his two conspiracy convictions does
the evidence argument. As a result, Lawson should have raised it at trial
and requested an appropriate jury instruction. Because Lawson did not do
so, he did not preserve the issue for appeal and thus cannot raise it for the
first time now on PCRA review. As discussed hereinabove, pursuant to
section 9544(b) of the PCRA, an issue is waived for purposes of th
the petitioner could have raised it but failed to do so before trial, at trial, on
3 Although Andrews had not raised the issue during trial or requested an appropriate jury instruction, the Supreme Court nevertheless went on to address the sufficienc Id. at 315.
- 16 - J-S57013-14 J-S57014-14
§ 9544(b). Moreover, because Andrews represented himself pro se at trial,
he also cannot pose the failure to preserve the issue as one implicating the
Commonwealth v. Fletcher, 517, 986 A.2d 759, 773 (Pa. 2009).
For his fifth issue on appeal, Lawson contends that the PCRA court
erred in dismissing his amended PCRA petition without considering his pro se
response to its Pa.R.A.P. 907 notice to dismiss. Lawson argues that his
response was timely, as application
establishes that it was filed on October 7, 2013, the 20 th day after the filing
that the available evidence shows that the operative date for filing pursuant
to the prisoner mailbox rule was, at the earliest, October 8, 2013. Trial
Court Opinion, 12/5/2013, at 5.
We need not resolve this dispute regarding the date of the filing of
its entirety, and it contains no information, argument, or citation to authority
- 17 - J-S57013-14 J-S57014-14
petition pursuant to Rule 907 without an evidentiary hearing.
appointed PCRA counsel (Attorney McElroy) made certain misrepresentations
of fact in his Finley letter and thus rendered ineffective assistance of
counsel by failing to advocate on his beha
10/7-8/2013, at 8-17. In neither his subsequently filed Rule 1925(b)
statement nor in his appellate brief, however, did Lawson assert a separate
petition for withdrawal from representation. As such, Lawson failed to
pursue on appeal the only new issue raised in his reply to the Rule 907
notice. We must therefore conclude
its contents did not result in any prejudice to Lawson. No relief is due on
this issue.
For his final issue on appeal, Lawson claims that the PCRA court erred
in its October 17, 2013 order dismissing without prej
constituted a second PCRA petition and was premature pending the final
disposition of his first PCRA petition (dismissed by order dated October 7,
2013). On October 17, 2013, the 30-day period for the filing of an appeal
- 18 - J-S57013-14 J-S57014-14
from the October 7, 2013 order had not expired.4
-file his second PCRA petition upon the
expiration of the appeal period or exhaustion of his appellate rights in regard
PCRA court properly tre
a second PCRA petition. Our Supreme Court has emphasized that the PCRA
habeas corpus and that habeas corpus provides an
independent basis for relief only in those cases when there is no remedy
See, e.g., Commonwealth v. Morris, 822 A.2d 684,
692-
violations of his constitutional rights. Pursuant to section 9543(a)(2)(i) of
the PCRA, petitioners may obtain remedies for violation of their state or
federal constitutional rights. 42 Pa.C.S.A. § 9543(a)(2)(i).
Second, a second or subsequent PCRA petition cannot be filed until the
resolution of review of the pending PCRA petition by the highest state court
in which review is sought, or upon the expiration of the time for seeking
such review. Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
4 Lawson filed his notice of appeal from the October 7 order on October 29, 2013.
- 19 - J-S57013-14 J-S57014-14
Because final resolution of review
pending at the time he filed his second PCRA petition, the PCRA court
properly dismissed the second PCRA petition without prejudice.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/19/2014
- 20 -