Com. v. Leland, W.

• Court: Superior Court of Pennsylvania
• Decided: July 25, 2022
• Docket: 519 EDA 2021
• Status: Unpublished

Opinion

J-S19041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WASBA A. LELAND : : Appellant : No. 519 EDA 2021

Appeal from the PCRA Order Entered November 12, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009567-2015

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 25, 2022

Wasba A. Leland appeals from the November 12, 2020 order denying

his petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The relevant facts of this case were summarized in a prior opinion of

this Court on direct appeal as follows:

On July 19, 2015, Appellant had an altercation with Antonio Smith in which Smith was shot in the leg. Appellant left the scene before police arrived. The following month, a detective on the Fugitive Task Force learned that Appellant had been seen at a mall. Upon arriving at the mall, the detective saw Appellant with his girlfriend, Melissa Williams. Appellant dropped the bags he was carrying and fled, but police officers apprehended him after a struggle. Williams was also taken into custody on an unrelated matter. Inside her purse was a handgun that was the source of a bullet casing recovered at the location of Smith’s shooting. ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S19041-22

Commonwealth v. Leland, 204 A.3d 461, 462 (Pa.Super. 2019)

(unpublished memorandum).

On March 7, 2017, Appellant proceeded to a jury trial in connection with

this incident and was ultimately found guilty of carrying a firearm without a

license and carrying a firearm on public streets or public property in

Philadelphia.1 Subsequent to the jury trial, Appellant, a convicted felon, was

also found guilty in a bench trial of persons not to possess, use, manufacture,

control, sell or transfer firearms.2 On May 26, 2017, Appellant was sentenced

to an aggregate term of 5 to 10 years’ imprisonment, followed by 10 years’

probation.3

On February 12, 2019, a panel of this Court affirmed Appellant’s

judgment of sentence. See id. Appellant did not file a petition for allowance

of appeal with our Supreme Court.

On February 12, 2020, Appellant filed a timely pro se PCRA petition and

William J. Ciancaglini, Esq. (hereinafter, “PCRA counsel”) was appointed to

represent him. PCRA counsel filed an amended PCRA petition on Appellant’s

behalf on July 7, 2020. Thereafter, on October 6, 2020, the PCRA court

____________________________________________

1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively. The record reflects that the jury found Appellant not guilty of robbery, aggravated assault, and possessing instruments of crime.

2 18 Pa.C.S.A. § 6105(a)(1).

3 Appellant was represented at trial by Chris Boltinghouse, Esq. (hereinafter, “trial counsel”).

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provided Appellant with notice of its intention to dismiss his petition without a

hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not respond to the

PCRA court’s Rule 907 notice. On November 12, 2020, the PCRA court

dismissed Appellant’s petition without a hearing.

Appellant filed a pro se notice of appeal on December 16, 2020. On

October 25, 2021, this Court issued a Rule to Show Cause directing Appellant

to explain why this appeal should not be quashed as untimely filed.

Appellant’s counsel filed a response on November 5, 2021. On November 8,

2021, this Court discharged the Rule to Show Cause and deferred the issue to

the merits panel.4

Preliminarily, we must address whether Appellant’s untimely appeal can

be excused by the prisoner mailbox rule. Under the prisoner mailbox rule, “a

pro se prisoner’s document is deemed filed on the date he delivers it to prison

authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38

(Pa.Super. 2011) (citation omitted), appeal denied, 46 A.3d 715 (Pa. 2012).

Generally, “any reasonably verifiable evidence of the date that the prisoner

deposits” the document with prison authorities is acceptable to satisfy this

rule, including a certificate of mailing, cash slip from prison authorities, or

4 The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On April 1, 2021, the PCRA court filed a one-paragraph “Letter in Lieu of Opinion” indicating that it was relying on the reasoning for dismissing Appellant’s PCRA petition set forth in footnote 1 of its November 12, 2020 order.

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evidence of internal operating procedures of the prison mail system. See

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).

Here, Appellant’s notice of appeal had to be filed by Monday, December

14, 2020, because the 30th day of the appeal period fell on a Saturday. See

Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry

of the order from which the appeal is taken); 1 Pa.C.S.A. § 1908 (whenever

the last day of the appeal period falls on a weekend or on any legal holiday,

such day shall be omitted from the computation of time). The clerk of courts

received Appellant’s notice of appeal on December 16, 2020, but the record

does not contain a certificate indicating when it was deposited with prison

authorities. Nonetheless, we conclude that Appellant’s notice of appeal, which

was dated December 10, 2020, presumably would have been deposited with

prison authorities or placed in the prison mailbox by the following day, making

it timely filed. Accordingly, we deem Appellant’s notice of appeal to be timely.

Appellant raises the following issue for our review:

Did the [PCRA] court err in dismissing Appellant’s [PCRA] Petition without holding an evidentiary hearing?

Appellant’s brief at 5 (parentheses omitted).

Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants

great deference to the findings of the PCRA court, and we will not disturb those

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findings merely because the record could support a contrary holding.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation

omitted). In order to be eligible for PCRA relief, a defendant must 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. 42 Pa.C.S.A.

§ 9543(a)(3).

This court has long recognized that there is no absolute right to an

evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super.

2006) (citation omitted). When the PCRA court denies a petition without an

evidentiary hearing, as is the case here, we “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. Khalifah, 852 A.2d 1238, 1240

(Pa.Super. 2004). “It is within the PCRA court’s discretion to decline to hold

a hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence.” Commonwealth v. Wah, 42 A.3d

335, 338 (Pa.Super. 2012) (citations omitted).

Instantly, Appellant contends that an evidentiary hearing was warranted

in this matter because his trial counsel was ineffective for failing to raise a

justification/constructive possession defense to the gun possession charges at

trial. Appellant’s brief at 12. We disagree.

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To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must establish the following three factors: “first[,] the underlying

claim has arguable merit; second, that counsel had no reasonable basis for

his action or inaction; and third, that Appellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014)

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the [i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation

marks omitted; some brackets in original), citing 42 Pa.C.S.A.

§ 9543(a)(2)(ii).

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d

1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487

(Pa. 2011).

Upon review, we find that Appellant’s ineffectiveness claim fails because

he failed to satisfy the first and second prongs of the aforementioned test;

namely, that the claim had arguable merit and that trial counsel had no

reasonable strategic basis for his inaction. See Commonwealth v.

Simpson, 66 A.3d 253, 260 (Pa. 2013). The record reflects that a justification

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defense to the gun possession charges would have been futile because it was

inconsistent with Appellant’s sworn testimony at trial that he retrieved the

firearm from the ground after Smith had already been shot and was fleeing

down the street; continued to possess the firearm as he walked to 10th and

Tabor in Philadelphia; and then gave the firearm to his girlfriend to put in her

purse. See notes of testimony, 3/8/17 at 25-26.

Our Supreme Court has repeatedly recognized that “[t]rial counsel

cannot be found ineffective for failing to pursue a trial strategy that is in direct

conflict with his client’s sworn testimony.” Commonwealth v. Laird, 726

A.2d 346, 354 (Pa. 1999) (citation omitted); see also Commonwealth v.

Smith, 17 A.3d 873, 902 (Pa. 2011) (stating, “we will not find counsel

ineffective for failing to present a defense that would have conflicted with [his]

testimony.” (citations omitted)), cert. denied, 567 U.S. 937 (2012).

Additionally, “[c]ounsel will not be deemed ineffective for failing to raise a

claim that has no merit.” Commonwealth v. Johnson, 815 A.2d 563, 590

(Pa. 2002) (citation omitted).

Based on the foregoing, we find that Appellant’s ineffectiveness claim is

frivolous and unsupported by the record. See Wah, 42 A.3d at 338.

Accordingly, we conclude that the PCRA court did not err in dismissing

Appellant’s petition without conducting an evidentiary hearing and affirm its

November 12, 2020 order.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/25/2022

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