Com. v. Long, D.

• Court: Superior Court of Pennsylvania
• Decided: September 22, 2023
• Docket: 2438 EDA 2022
• Status: Unpublished

Opinion

J-S18029-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DARNELL LONG : : Appellant : No. 2438 EDA 2022

Appeal from the PCRA Order Entered August 17, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000631-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DARNELL LONG : : Appellant : No. 2439 EDA 2022

Appeal from the PCRA Order Entered August 17, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000632-2018

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

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 22, 2022

Appellant, Darnell Long, appeals from the August 17, 2022 order which

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

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S18029-23

42 Pa.C.S. §§ 9541-46. Counsel for Appellant has filed a Turner/Finley1 no-

merit brief and a petition to withdraw as counsel.2 After review, we grant

counsel’s request to withdraw and affirm the order dismissing Appellant’s

petition.

The relevant factual and procedural history is as follows. On November

5, 2017, longtime friends Lynnelle Gaffney, Steffon Wilburn, and Appellant

were hanging out, drinking alcohol, and smoking marijuana at a residence

located at 436 West Wyoming Avenue in Philadelphia. The three retreated to

a bedroom where Gaffney witnessed Appellant spontaneously shoot Wilburn

in the leg multiple times with a gun that was wrapped in a hooded sweatshirt.

Appellant then began walking toward Gaffney and proceeded to fire three or

four shots at her, one of which struck her in the left chest. Appellant

subsequently fled the scene.

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 Appellant’s counsel purports to withdraw under Anders v. California, 386

U.S. 738 (1967), which applies when counsel seeks to withdraw from representation on direct appeal. When counsel seeks to withdraw from representation on collateral appeal, as is the case here, the dictates of Turner and Finley are applicable. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (counsel petitioning to withdraw from PCRA representation must proceed not under Anders, but under Turner and Finley). Because an Anders brief provides greater protection to a defendant, however, this Court may accept an Anders brief in lieu of a Turner/Finley “no merit” letter. Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014). We will refer to counsel’s erroneously titled Anders brief as a Turner/Finley brief.

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When police and medical personnel responded to the incident, both

Wilburn and Gaffney named Appellant as the shooter. Once they arrived at

the Einstein Hospital, however, both victims said that they could not identify

the shooter. Hospital personnel treated both victims for gunshot wounds and

subsequently released them.

When police examined the bedroom where the shooting occurred, they

recovered a bullet from inside a wall, as well as other evidence. They also

observed a small amount of blood on the floor and a bullet hole in a wall.

Based on the evidence collected by police and the information received from

Gaffney and Wilburn, police secured a warrant and arrested Appellant on

November 16, 2017.

On September 25, 2018, a jury convicted Appellant of Possessing an

Instrument of Crime3 (“PIC”) but acquitted Appellant of three counts of

Aggravated Assault. Directly thereafter, the trial court conducted a bifurcated

stipulated trial, and convicted Appellant of a violation of the Uniform Firearms

Act, specifically Persons Not to Possess Firearms pursuant to Section 6105

(“VUFA § 6105”).4 On February 1, 2019, the court sentenced Appellant to an

aggregate term of 10 to 20 years’ incarceration.5

3 18 Pa.C.S. § 907.

4 18 Pa.C.S. § 6105(a)(1).

5 Specifically, the trial court sentenced Appellant to 10 to 20 years’ incarceration on the charge of VUFA § 6105 and no further penalty for the PIC conviction.

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On December 3, 2020, this Court affirmed Appellant’s judgment of

sentence and on July 7, 2021, our Supreme Court denied Appellant’s petition

for allowance of appeal. Commonwealth v. Long, 245 A.3d 1043 (Pa.

Super. 2020) (unpublished memorandum), appeal denied, 258 A.3d 410 (Pa.

2021).

Appellant filed a timely pro se PCRA petition raising ineffective

assistance of counsel claims and, on April 22, 2022, the PCRA court appointed

William Ciancaglini, Esq. to represent Appellant. On May 22, Attorney

Ciancaglini filed a Turner/Finley no-merit letter averring that Appellant’s

claims were not meritorious. On July 25, 2022, the PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing. The court

subsequently dismissed Appellant’s petition and permitted Attorney

Ciancaglini to withdraw as counsel.

On September 15, 2022, Appellant filed a pro se notice of appeal.6

October 3, 2022, the PCRA court appointed James Lloyd, Esquire, to represent ____________________________________________

6 Upon review, the docket reflects that the PCRA court entered an order dismissing Appellant’s petition on August 12, 2022, and then entered another order to that effect on August 17, 2022. Both docket entries fail to indicate whether the clerk of courts served the dismissal orders on parties pursuant to Pa.R.Crim.P. 114. Appellant filed his notice of appeal on September 15, 2022, purporting to appeal from the August 17, 2022 dismissal. The Commonwealth argues that the PCRA court actually dismissed Appellant’s petition on August 12, 2022, and, therefore, Appellant’s appeal—filed 34 days later—is untimely. We are unable to resolve this discrepancy from our review of the record and are constrained to conclude that a breakdown in court operations occurred. Accordingly, we find Appellant’s appeal to be timely. See Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa. Super. 1995) (extension of filing (Footnote Continued Next Page)

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Appellant in this appeal. Attorney Lloyd filed a Notice of Intent to File an

Anders/McClendon Brief Pursuant to Pa.R.A.P. 1925(c)(4) in Lieu of a

Statement of Matters Complained of on Appeal. The PCRA court did not file a

responsive opinion. Attorney Lloyd proceeded to file a Turner/Finley brief

with this Court.7

In his Turner/Finley brief, counsel raises the following issues for our

review: “Did the PCRA court err when it dismissed [Appellant]’s PCRA petition

without a hearing as not raising a meritorious claim under the PCRA?”

Turner/Finley Br. at 5.

Before we consider Appellant’s issue, we must review counsel’s request

to withdraw. Pursuant to Turner/Finley, independent review of the record

by competent counsel is necessary before the Court shall permit withdrawal

on collateral appeal. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.

2009), abrogated on other grounds by Commonwealth v. Bradley, 261 A.3d

381 (Pa. 2021). Counsel is then required to submit a “no merit” brief (1)

detailing the nature and extent of her review; (2) listing each issue the

petitioner wishes to have raised on review; and (3) explaining why the

petitioner’s issues are meritless. Pitts, 981 A.2d at 876 n.1. The Court then

conducts its own independent review of the record to determine if the petition

period is permitted only in extraordinary circumstances, such as fraud or some breakdown in court operations).

7 Appellant filed a pro se response, raising the same issues that he raised in

his pro se PCRA petition.

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is meritless. Id. Counsel must also send to the petitioner: “(1) a copy of the

‘no merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) 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).

Our review of the record indicates that counsel has complied with each

of the above requirements. In addition, counsel sent Appellant copes of the

Turner/Finley brief and petition to withdraw, and advised Appellant of his

rights in lieu of representation. See Commonwealth v. Widgins, 29 A.3d

816, 818 (Pa. Super. 2011). Since counsel has complied with the

Turner/Finley requirements, we now proceed with our independent review

of the record and the merits of Appellant’s claims.

We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

“This Court grants great deference to the findings of the PCRA court if the

record contains any support for those findings.” Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

To prevail on a petition for PCRA relief, a petitioner must plead and

prove, by a preponderance of the evidence, that his conviction or sentence

resulted from one or more of the circumstances enumerated in 42 Pa.C.S. §

9543(a)(2). These circumstances include ineffectiveness of counsel, which

“so undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).

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The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [the] appellant.” Id. To

satisfy this burden, the appellant must plead and prove by a preponderance

of the evidence that: (1) the underlying claim has arguable merit; (2) no

reasonable basis existed for counsel’s actions or failure to act; and (3) there

is a reasonable probability that the outcome of the challenged proceeding

would have been different absent counsel’s error. Commonwealth v.

Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s claim. Id.

To establish the prejudice prong, the petitioner must prove a reasonable

probability that the outcome of the relevant proceedings would have been

different but-for counsel’s action or inaction. Commonwealth v. Busanet,

54 A.3d 35, 46 (Pa. 2012). Importantly, “counsel cannot be deemed

ineffective for failing to raise a meritless claim.” Fears, 86 A.3d at 804.

Finally, “[t]he PCRA court has discretion to dismiss a petition without a

hearing when the court is satisfied that there are no genuine issues concerning

any material fact, the petitioner is not entitled to post-conviction collateral

relief, and no legitimate purpose would be served by further proceedings.”

Commonwealth v. Holt, 175 A.3d 1014, 1017-18 (Pa. Super. 2017)

(citations omitted). “To obtain a reversal of a PCRA court’s decision to dismiss

a petition without a hearing, an appellant must show that he or she raised a

genuine issue of fact which, if resolved in his favor, would have entitled him

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to relief, or that the court otherwise abused its discretion in denying a

hearing.” Id.

Instantly, Appellant avers that his trial counsel was ineffective during

his VUFA § 6015 bench trial. Specifically, Appellant asserts that counsel was

ineffective when counsel failed to: (1) object to Appellant being tried without

a jury; (2) present a justification defense during the bench trial; (3) argue

that evidence of VUFA § 6105 was insufficient; (4) call Appellant as a witness

during the bench trial; and (5) call Appellant’s sister as a witness during the

bench trial. Turner/Finley Br. at 28-29, 38.

Appellant’s claim that trial counsel was ineffective for failing to object

to a jury waiver trial lacks arguable merit. Prior to the bench trial, on

September 27, 2018, Appellant executed a written jury waiver colloquy

comprised of thirty-nine questions concerning his knowledge and

comprehension of the right to a jury trial that he was waiving. Written Jury

Trial Waiver Colloquy, 9/27/18. Appellant answered each question and

initialized each page, verifying that he understood. Id. A written jury waiver

that is signed, presented, and accepted in open court is prima facie evidence

of a valid waiver of jury trial rights. Commonwealth v. Mallory, 941 A.2d

686, 697 (Pa. 2008). Accordingly, trial counsel would have no reason to object

and this claim lacks arguable merit.

Moreover, the PCRA court found that that trial counsel had a reasonable

basis for not pursuing a jury trial on the VUFA § 6105 charge. In its Rule 907

notice to dismiss, the PCRA court explained: [t]his is a common strategy for

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trial counsel, because they find it may harm [a] defendant to have a list of

bad acts presented to the jury. In order to be [ineligible to carry a firearm

under Section 6015], there must be some previous bad acts to make [a

defendant] ineligible. Many trial attorneys do not want these acts to prejudice

a jury.” Rule 907 Notice, 7/25/22, at ¶ 4. We agree that trial counsel had a

reasonable basis for failing to pursue a jury trial and, therefore, Appellant

failed to plead and prove this claim.

Appellant next avers that trial counsel was ineffective for failing to raise

a claim that the evidence was insufficient to support the VUFA § 6105, “since

no evidence was presented at the waiver trial.” PCRA Pet., 4/5/22, at 4. Our

review of the record belies Appellant’s claim.

To sustain a conviction under Section 6015, the Commonwealth had to

demonstrate that Appellant possessed a firearm and had a previous conviction

for one of the enumerated offenses in the statute, including offenses under

The Controlled Substance, Drug, Device, and Cosmetic Act. 18 Pa.C.S. §

6015(a)(1) and (c)(2). The Commonwealth submitted evidence that Appellant

possessed a firearm during the jury portion of his trial, and the jury found him

guilty of PIC—namely possessing a firearm. During the waiver trial, the

Commonwealth submitted evidence that Appellant had a prior conviction for

Possession with Intent to Deliver. N.T. Trial, 9/27/18, at Exhibit C-36.

Because the jury previously found Appellant guilty of possessing a firearm and

the Commonwealth presented evidence of Appellant’s prior conviction, trial

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counsel lacked an arguable basis to raise a challenge to the sufficiency of the

evidence.

In his next issue, Appellant avers that trial counsel was ineffective for

failing to present a justification defense during the bench trial. This claim

lacks arguable merit. The PCRA court found that Appellant failed to present

any evidence of self-defense in his jury trial, where the jury found him guilty

of PIC for the same firearm that was at issue in the bench trial. Rule 907

Notice at ¶ 4. Absent any evidence to support a claim of self-defense,

Appellant’s claim lacks arguable merit.

Finally, Appellant avers that trial counsel was ineffective for failing to

call Appellant and Appellant’s sister as witnesses during the waiver trial to

testify regarding a justification defense.

“To prove arguable merit based on trial counsel’s failure to call a

witness, a PCRA petitioner must show that the witness existed and was

available; counsel was aware of, or had a duty to know of the witness; the

witness was willing and able to appear; and the proposed testimony was

necessary in order to avoid prejudice.” Commonwealth v. Robinson, 278

A.3d 336, 343 (Pa. Super. 2022) (citation and internal quotation marks

omitted). “In this context, prejudice means that the uncalled witnesses’

testimony would have been beneficial under the circumstances of the case.”

Id. (citation and internal quotation marks omitted).

During the jury trial, the court colloqued Appellant and asked if he

wished to testify; Appellant stated under oath that he did not wish to testify

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on his own behalf. N.T. Trial at 43-46. Appellant also advised the court that

the only witness he wished to present was his sister, but that she was not

available to testify that day. Id. The record reflects that Appellant was not

willing to testify and his sister was not available to testify. Accordingly,

Appellant’s claims lack arguable merit.

In conclusion, the PCRA court’s decision to deny PCRA relief is supported

by the evidence of record and free of legal error. Accordingly, Appellant’s

claim merits no relief. We, thus, grant counsel's petition to withdraw as

counsel and affirm the PCRA court’s order.

Order affirmed. Application to Withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2023

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