Com. v. Maze, B.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2021
• Docket: 1549 MDA 2020
• Status: Unpublished

Opinion

J-S17008-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRANDON JALON MAZE

Appellant No. 1549 MDA 2020

Appeal from the PCRA Order Entered November 17, 2020 In the Court of Common Pleas of Franklin County Criminal Division at No: CP-28-CR-0000342-2017

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 9, 2021

Appellant, Brandon Jalon Maze, appeals pro se from the November 17,

2020 order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

At the conclusion of trial on June 22, 2018, the jury found Appellant

guilty of aggravated assault and conspiracy to commit first-degree murder.1

Appellant waived his right to counsel and represented himself at trial but

requested and received appointed counsel prior to sentencing. On October

24, 2018, the trial court imposed 10 to 20 years for the murder conspiracy

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1), 903, and 2502(a). The Commonwealth’s evidence was that Appellant and others conspired to commit murder as revenge for a stabbing of Appellant’s uncle. They acquired firearms, located the intended victims, and that Appellant fired and missed. J-S17008-21

followed by 7½ to 10 years for aggravated assault for an aggregate 17½ to

40 years of incarceration. On January 2, 2019, the trial court denied

Appellant’s timely post-sentence motions. On November 7, 2019, this Court

affirmed the judgment of sentence.

On April 2, 2020, Appellant filed a timely first PCRA petition. Appointed

counsel reviewed the matter and filed a no merit letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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

On August 10, 2020, the PCRA court entered an order permitting counsel to

withdraw and notifying Appellant of its intent to dismiss the petition pursuant

to Pa.R.Crim.P. 907. At Appellant’s request, the PCRA court extended the

deadline for Appellant’s response to October 29, 2020. Appellant filed his

response to the Rule 907 notice on November 12, 2020, and filed a motion for

leave to amend his PCRA petition on November 16, 2020. The PCRA court

denied leave to amend and dismissed the petition on November 17, 2020.

Appellant filed this timely pro se appeal on December 16, 2020. The

next day, the PCRA court entered an order under Pa.R.A.P. 1925, directing

Appellant to file a concise statement under Pa.R.A.P. 1925(b) within 21 days.

The docket reflects that Appellant filed his concise statement out of time, on

January 20, 2021. Appellant also failed to serve his concise statement on the

PCRA court, in compliance with Pa.R.A.P. 1925(b)(1). Appellant claims he

complied with Rule 1925, and that his pro se filing was mishandled by the

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court. Assuming without deciding that this claim is true, Appellant cannot

obtain appellate relief because his assertions of error, which follow, lack merit:

1. Was the post-trial counsel ineffective for failing to raise during post-trial proceedings and on direct appeal that [Appellant’s] waiver of trial counsel was defective violating the 6 th Amendment right to counsel?

2. Was PCRA counsel ineffective by failing to amend the initial pro se petition and properly arguing post-trial counsel’s ineffectiveness?

3. Did the PCRA court abuse its discretion by not granting leave to amend the initial PCRA?

Appellant’s Pro Se Brief at 2.

We must determine whether the trial court committed an error of law

and/or whether the record supports the PCRA court’s findings of fact.

Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014). We review the

PCRA court’s legal conclusions de novo. Id. Where the record supports the

PCRA court’s findings of fact, they are binding on this Court. Id. To prevail

on a claim of ineffective assistance of counsel, a PCRA petitioner must plead

and prove by a preponderance of the evidence each of the following: (1) that

the underlying issue is of arguable merit; (2) that counsel had no strategic

basis in support of the disputed action or inaction; and (3) that counsel’s error

was prejudicial, i.e., that there is a reasonable probability that the outcome of

the proceeding would have been different but for counsel’s error.

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). “[A] finding that

a chosen strategy lacked a reasonable basis is not warranted unless it can be

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concluded that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.” Id. at 312. For

purposes of prejudice, “[A] reasonable probability is a probability that is

sufficient to undermine confidence in the outcome of the proceeding.” Id.

The PCRA court may dismiss a petition without a hearing when it is satisfied

that there is no genuine issue concerning any material fact and that further

proceedings would serve no purpose. Pa.R.Crim.P. 907(1).

First, Appellant argues that appointed post-trial/appellate counsel was

ineffective for failing to challenge the validity of Appellant’s waiver of trial

counsel. The substance of Appellant’s argument, however, does not pertain

to his waiver-of-counsel colloquy. Rather, it pertains to a jury instruction

Appellant requested during points for charge. At the beginning of trial,

Appellant was charged with conspiracy to commit murder and attempted

murder, both inchoate crimes. The Pennsylvania Crimes Code prohibits

conviction of more than one inchoate offense (attempt, conspiracy, or

solicitation) for the same crime. 18 Pa.C.S.A. § 906; Commonwealth v.

King, 234 A.3d 539 (Pa. 2020); Commonwealth v. Rosario, 248 A.3d 599

(Pa. Super. 2021). Therefore, as charged, Appellant could not have been

exposed to consecutive sentences because he could only have been convicted

of one of the charged offenses.

Nonetheless, during the colloquy on points for charge Appellant asked

the trial court to instruct the jury on aggravated assault as a lesser included

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offense of attempted murder. Appellant references the following portion of

the transcript:

DEFENDANT MAZE: Your Honor, 9, 10, and 11 they’re basically –

THE COURT: You’re not charged with aggravated assault.

DEFENDANT MAZE: I understand that but from my understanding of me studying and everything I felt as though they are lesser charges, and I didn’t know if I was acquitted if I could still be charged with lesser charges.

THE COURT: Here’s the way this works. Mr. Faust and [standby counsel], feel free to jump in if you object to my definition of how the law works. You are permitted to ask this Court to instruct on lesser included if the evidence supports it, and we would certainly find it would support an aggravated assault charge […], but what you need to understand about that is if you request that and I instruct the jury on that, then they have that option to return that verdict, so if you don’t request it and the Commonwealth doesn’t request it, then the only option they have is attempted murder. They can’t go out and create a lesser included unless I instruct them that they can consider that, so it’s really up to you as a matter of strategy whether you want me to advise the jury that they have the option to consider aggravated assault[.]

N.T. Trial, 6/21/18 at 201-202.

In asking for the aggravated assault instruction, Appellant created the

possibility that the jury could convict on conspiracy, acquit on attempted

murder, and convict on aggravated assault. That is what occurred, and the

trial court imposed 10 to 20 years of incarceration for conspiracy to commit

murder and a consecutive 7½ to 20 years for aggravated assault—a much

longer aggregate sentence than would have been possible had Appellant not

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requested the aggravated assault charge and still have been acquitted on the

attempted murder charge.2

Rule 121 of the Pennsylvania Rules of Criminal Procedure requires the

trial court to inform the defendant of the potential punishments for the

charged offenses during the waiver-of-counsel colloquy. Pa.R.Crim.P.

121(A)(2)(c). We observe that the certified record contains a written

document, signed by Appellant and counsel for the Commonwealth, reflecting

Appellant’s waiver of counsel pursuant to Pa.R.Crim.P. 121. Waiver of Counsel

Pursuant to Pa.R.Crim.P. 121, 2/23/18. Appellant indicated orally that he

understood the permissible range of sentences, but the record does not reflect

that the trial court informed him of those. N.T. Hearing, 2/23/18, at 15. 3 In

Commonwealth v. Pou, 201 A.3d 735, 738 (Pa. Super. 2018), appeal

denied 208 A.3d 458 (Pa. 2019), a panel of this Court remanded for a hearing

on a PCRA petition where the trial court failed to inform the defendant of the

specific statutory maximum sentences for the charged offenses and direct

2 The legality of the sentence was not addressed on direct appeal or in this collateral proceeding. We observe that conspiracy (agreement and overt act in furtherance thereof, per § 903) and aggravated assault (attempt to inflict or infliction of serious bodily injury per § 2702(a)(1)) contain distinct elements. Offenses merge under 42 Pa.C.S.A. § 9765 where the offenses arise from a single act and all the statutory elements of the lesser offense are included in the greater. 42 Pa.C.S.A. § 9765. A defendant can be sentenced for aggravated assault and the inchoate crime of conspiracy. Commonwealth v. Fuller, 579 A.2d 879, 887 (Pa. Super. 1990).

3 The transcript of the February 23, 2018 hearing appears at Docket Number 117, along with Appellant’s pro se PCRA petition.

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appeal counsel failed to raise the issue. In Commonwealth v. Isaac, 205

A.3d 358 (Pa. Super. 2019), after a remand under circumstances like Pou,

this Court held that errors in the application of Rule 121 do not constitute

structural, constitutional errors for which prejudice can be presumed for

purposes of collateral claims of ineffective assistance of counsel.

Appellant’s argument does not implicate the trial court’s compliance, or

lack thereof, with Rule 121, as Appellant was not charged with aggravated

assault as of the time of his pre-trial waiver-of-counsel colloquy. Rule 121

does not govern review of points for charge which occurs during trial, and

Appellant cites no other law requiring the trial court to advise a pro se

defendant of the ramifications of a requested jury instruction during a waiver

of counsel colloquy. Assuming arguendo that the trial court’s waiver-of-

counsel colloquy was deficient, a deficient colloquy is not presumptively

prejudicial under Isaac. And because Appellant’s pro se Brief to this Court

addresses the trial court’s handling of the points for charge rather than the

waiver-of-counsel colloquy, we discern no basis for a remand under Pou and

Isaac.

Next, we observe that Appellant’s argument relates to an instruction the

trial court gave at Appellant’s request and without any subsequent objection

from Appellant. Rule 647(B) required Appellant to object to the charge before

the jury retired to deliberate, and he did not. Pa.R.Crim.P. 647(b);

Commonwealth v. Pressley, 887 A.2d 220, 223 (Pa. 2005). Appellant

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acknowledged in his written and oral waiver of counsel colloquies that he could

permanently lose the right to challenges any errors to which he did not lodge

a timely objection. Waiver of Counsel Pursuant to Pa.R.Crim.P. 121, 2/23/18,

at ¶ 7; N.T. Hearing, 2/23/18, at 15.

An apparent strategic blunder, such as that at issue here, is a risk a

defendant undertakes when choosing to exercise the constitutional right to

self-representation. On collateral review, Appellant cannot hold direct

appellate counsel accountable for mistakes Appellant made acting pro se

during trial. Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014),

cert. denied, 576 U.S. 1009, (2015) (holding that “on collateral attack,

Appellant is generally limited to faulting appellate counsel for failing to raise

otherwise preserved claims of trial court error or failing to properly litigate

those claims that counsel actually raised on appeal.”).4

4 The trial court relied heavily on Blakeney in support of its order. The trial court reads the Supreme Court’s per curiam opinion in that case as foreclosing any collateral challenge to appellate counsel’s failure to challenge a deficient waiver-of-counsel colloquy. We find Blakeney distinguishable from the instant matter as the Blakeney Court acknowledged that it reviewed the waiver colloquy on direct appeal and found no deficiency. Blakeney, 108 A.3d at 748. Moreover, in Commonwealth v. Davido, 868 A.2d 431, 437 (Pa. 2005), our Supreme Court held that the trial court bears the responsibility for ensuring a valid waiver of counsel under Rule 121. Thus, the claim of a deficient waiver was reviewable on direct appeal and did not need to await collateral review of counsel’s performance prior to the order permitting his withdrawal. Id. And, as we explained in the main text, Pou and Isaac both reviewed a claim of appellate counsel’s ineffectiveness for failing to challenge a defective waiver colloquy.

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In summary, Appellant’s first argument relates in substance to

Appellant’s strategic mistake made during trial when discussing points for

charge, and not to the trial court’s handling of the waiver-of-counsel colloquy.

Appellant failed to lodge a timely objection to the points for charge before the

jury retired. Direct appeal counsel could not have addressed this issue and

therefore the assertion of counsel’s ineffectiveness lacks arguable merit.

Next, Appellant argues that PCRA counsel was ineffective for failing to

amend his petition. In his November 9, 2020 response to the PCRA court’s

notice of intent to dismiss his petition, Appellant claimed PCRA counsel was

ineffective for failing to amend his petition to challenge Appellant’s conviction

on Double Jeopardy grounds under the Fifth Amendment to the United States

Constitution. Appellant’s Pro Se Response to the PCRA Court’s Notice of Intent

to Dismiss, 11/9/20, at 7-8. Appellant’s pro se brief on appeal does not

reference the Double Jeopardy issue. Rather, the brief contains a single

paragraph arguing for the first time on appeal that PCRA counsel was

ineffective for failing to amend Appellant’s petition to address direct appeal

counsel’s handling of the waiver-of-counsel colloquy. Appellant’s Pro Se Brief,

at 15. Claims of PCRA counsel’s ineffectiveness cannot be raised for the first

time on appeal. Pa.R.A.P. 302(a); Commonwealth v. Henkel, 90 A.3d 16,

29-30 (Pa. Super. 2014) (en banc). In any event, we have addressed and

dismissed the substance of this argument in detail above.

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Finally, Appellant argues the PCRA court erred in denying Appellant’s

motion to amend his petition. A PCRA petitioner must inform the PCRA court

of his desire to add claims through an amended petition, and the PCRA court

shall freely allow amendment “to achieve substantial justice.” Pa.R.Crim.P.

905(A); Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015). The

purpose of Rule 905(A) is to prevent PCRA petitioners from losing the

opportunity for review of their claims due to correctable defects in the

pleadings. Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003).

Appellant claims, in a single paragraph of argument, that he failed to present

meritorious issues correctly in his pro se petition, and that PCRA counsel

“failed to argue the issue correctly.” Appellant’s Pro Se Brief at 16. Appellant

therefore claims he should have been allowed to amend his petition to argue

his issues correctly. Appellant fails to cite any law in support of this argument,

in violation of Pa.R.A.P. 2119(b), and he fails to identify any meritorious issues

he could have raised in an amended petition. Both defects preclude appellate

review and therefore, we cannot grant relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/09/2021

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