J-S15027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA Vv.
JAMAAR RICHARDSON. No. 465 EDA 2017 Appellant
Appeal from the PCRA Order January 13, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0407443-2004
BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY DUBOW, J.: FILED JUNE 15, 2018
Appellant, Jamaar Richardson, appeals pro se from the Order entered in the Philadelphia County Court of Common Pleas dismissing his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we adopt the PCRA court’s June 28, 2017 Opinion as our own and affirm the denial of relief.
The PCRA court set forth the relevant factual and tortured procedural history of this case in its June 28, 2017 Opinion and we adopt its recitation for purposes of this appeal. See PCRA Ct. Op., 6/28/17, at 1-8. In summary, a jury convicted Appellant of Second-Degree Murder, two counts of Robbery,
and two counts of Criminal Conspiracy! in connection with the planned robbery
1/18 Pa.C.S. § 2502(b); 18 Pa.C.S. 3701(a)(1); 18 Pa.C.S. § 903(a), respectively. J-S15027-18
of a Rite Aid in Philadelphia that resulted in the shooting death of the store’s manager, Michael Richardson, on January 19, 2003. On September 9, 2004, the court sentenced Appellant to life in prison for the Second-Degree Murder conviction, and consecutive terms of 5 to 20 years’ imprisonment for his remaining convictions.2 This Court affirmed on direct appeal, and our Supreme Court denied allowance of appeal on April 25, 2012. Commonwealth v. Richardson, 911 A.2d 185 (Pa. Super. 2006)) (unpublished Memorandum), appeal denied, 44 A.3d 1161 (Pa. 2012).
On August 16, 2012, Appellant filed a pro se PCRA Petition and an amended pro se Petition on June 24, 2013. After Appellant filed a Motion for the appointment of counsel on March 31, 2015, the Court appointed counsel.+ On February 11, 2016, counsel filed a motion to withdraw and a “no merit letter” pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Appellant forwarded a letter to PCRA counsel in response to the Finley letter. The court filed a Pa.R.Crim.P. 907 Notice on March 10, 2016, but after reviewing the letter Appellant had sent to counsel, the court
directed counsel to review the notes of testimony from the suppression
2 Robbery of the victim merged with the charge of Second-Degree Murder.
3 This six-year delay in the Pennsylvania Supreme Court’s denial of Appellant’s Petition for Allowance of Appeal was due to Appellant’s twice obtaining the right to file a petition for allowance of appeal nunc pro tunc after filing PCRA Petitions.
* The trial court noted in its Pa.R.A.P. 1925(a) Opinion that it did not receive Appellant’s PCRA Petitions from the Post-Trial Unit of the First Judicial District until May 8, 2015. See Trial Ct. Op., dated June 28, 2017, at 2 n. 10.
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hearing and to file either an amended PCRA Petition or a supplemental Finley letter. PCRA counsel filed an amended Finley letter and the court subsequently issued a supplemental Rule 907 Notice and granted Appellant an extension to August 15, 2016, to respond. Appellant responded to the court’s supplemental Rule 907 Notice on August 10, 2016, and the court directed counsel to respond to Appellant’s filing. Counsel then filed a second amended Finley letter, and the court issued a second supplemental 907 Notice on December 13, 2016. Appellant responded to the second supplemental Rule 907 Notice raising a new claim of trial counsel ineffectiveness. On January 13, 2017, the PCRA dismissed Appellant’s Petition and granted counsel’s motion to withdraw.
Appellant filed a timely Notice of Appeal pro se. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Was trial counsel ineffective for advising [Appellant] to forego his 5 Amendment right to testify in his own defense due to his speech impediment?
2. Was trial counsel ineffective for failing to present Shyrina Jenkins as a witness for the defense?
3. Was trial counsel ineffective for failing to present character witnesses who were not related to her client and for failing to utilize character evidence at all in her closing argument? J-S15027-18 4. Was trial counsel ineffective for presenting [Appellant’s] sister, Tyeisha Marshall, as a character witness?° Appellant’s Brief at 7 (reordered).°® Standard/Scope of Review
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court’s findings and whether its order is otherwise 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 supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
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). "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 [in] other evidence." Commonwealth v. Wah, 42 A.3d 335, 338
(Pa. Super. 2012) (citations omitted). When the PCRA court denies a petition
> In his Rule 1925(b) Statement, Appellant challenged the manner in which counsel presented his character witness. Here, his Statement of the Issue challenges the fact that his character witness was presented at all. These are two different issues. However, because the argument in his Brief encompasses the issue raised in his Rule 1925(b) Statement, we decline to find the issue as raised here waived.
© Appellant abandoned issues challenging PCRA counsel’s assistance that he had raised in his Pa.R.A.P. 1925(b) Statement.
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without an evidentiary hearing, 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). Ineffective Assistance of Counsel
The law presumes counsel has rendered effective assistance. Commonweatith v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of demonstrating ineffectiveness rests on [A]ppellant.” Id.
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J-S15027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA Vv.
JAMAAR RICHARDSON. No. 465 EDA 2017 Appellant
Appeal from the PCRA Order January 13, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0407443-2004
BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY DUBOW, J.: FILED JUNE 15, 2018
Appellant, Jamaar Richardson, appeals pro se from the Order entered in the Philadelphia County Court of Common Pleas dismissing his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we adopt the PCRA court’s June 28, 2017 Opinion as our own and affirm the denial of relief.
The PCRA court set forth the relevant factual and tortured procedural history of this case in its June 28, 2017 Opinion and we adopt its recitation for purposes of this appeal. See PCRA Ct. Op., 6/28/17, at 1-8. In summary, a jury convicted Appellant of Second-Degree Murder, two counts of Robbery,
and two counts of Criminal Conspiracy! in connection with the planned robbery
1/18 Pa.C.S. § 2502(b); 18 Pa.C.S. 3701(a)(1); 18 Pa.C.S. § 903(a), respectively. J-S15027-18
of a Rite Aid in Philadelphia that resulted in the shooting death of the store’s manager, Michael Richardson, on January 19, 2003. On September 9, 2004, the court sentenced Appellant to life in prison for the Second-Degree Murder conviction, and consecutive terms of 5 to 20 years’ imprisonment for his remaining convictions.2 This Court affirmed on direct appeal, and our Supreme Court denied allowance of appeal on April 25, 2012. Commonwealth v. Richardson, 911 A.2d 185 (Pa. Super. 2006)) (unpublished Memorandum), appeal denied, 44 A.3d 1161 (Pa. 2012).
On August 16, 2012, Appellant filed a pro se PCRA Petition and an amended pro se Petition on June 24, 2013. After Appellant filed a Motion for the appointment of counsel on March 31, 2015, the Court appointed counsel.+ On February 11, 2016, counsel filed a motion to withdraw and a “no merit letter” pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Appellant forwarded a letter to PCRA counsel in response to the Finley letter. The court filed a Pa.R.Crim.P. 907 Notice on March 10, 2016, but after reviewing the letter Appellant had sent to counsel, the court
directed counsel to review the notes of testimony from the suppression
2 Robbery of the victim merged with the charge of Second-Degree Murder.
3 This six-year delay in the Pennsylvania Supreme Court’s denial of Appellant’s Petition for Allowance of Appeal was due to Appellant’s twice obtaining the right to file a petition for allowance of appeal nunc pro tunc after filing PCRA Petitions.
* The trial court noted in its Pa.R.A.P. 1925(a) Opinion that it did not receive Appellant’s PCRA Petitions from the Post-Trial Unit of the First Judicial District until May 8, 2015. See Trial Ct. Op., dated June 28, 2017, at 2 n. 10.
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hearing and to file either an amended PCRA Petition or a supplemental Finley letter. PCRA counsel filed an amended Finley letter and the court subsequently issued a supplemental Rule 907 Notice and granted Appellant an extension to August 15, 2016, to respond. Appellant responded to the court’s supplemental Rule 907 Notice on August 10, 2016, and the court directed counsel to respond to Appellant’s filing. Counsel then filed a second amended Finley letter, and the court issued a second supplemental 907 Notice on December 13, 2016. Appellant responded to the second supplemental Rule 907 Notice raising a new claim of trial counsel ineffectiveness. On January 13, 2017, the PCRA dismissed Appellant’s Petition and granted counsel’s motion to withdraw.
Appellant filed a timely Notice of Appeal pro se. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Was trial counsel ineffective for advising [Appellant] to forego his 5 Amendment right to testify in his own defense due to his speech impediment?
2. Was trial counsel ineffective for failing to present Shyrina Jenkins as a witness for the defense?
3. Was trial counsel ineffective for failing to present character witnesses who were not related to her client and for failing to utilize character evidence at all in her closing argument? J-S15027-18 4. Was trial counsel ineffective for presenting [Appellant’s] sister, Tyeisha Marshall, as a character witness?° Appellant’s Brief at 7 (reordered).°® Standard/Scope of Review
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court’s findings and whether its order is otherwise 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 supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
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). "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 [in] other evidence." Commonwealth v. Wah, 42 A.3d 335, 338
(Pa. Super. 2012) (citations omitted). When the PCRA court denies a petition
> In his Rule 1925(b) Statement, Appellant challenged the manner in which counsel presented his character witness. Here, his Statement of the Issue challenges the fact that his character witness was presented at all. These are two different issues. However, because the argument in his Brief encompasses the issue raised in his Rule 1925(b) Statement, we decline to find the issue as raised here waived.
© Appellant abandoned issues challenging PCRA counsel’s assistance that he had raised in his Pa.R.A.P. 1925(b) Statement.
-4- J-S15027-18
without an evidentiary hearing, 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). Ineffective Assistance of Counsel
The law presumes counsel has rendered effective assistance. Commonweatith v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy this burden, Appellant must plead and prove by a preponderance of the evidence that: “(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different.” 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 ineffective assistance of counsel claim.
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
Adoption of Trial Court’s Analysis of Issues Raised
The Honorable M. Teresa Sarmina, who also presided over Appellant’s
jury trial, has authored a comprehensive, thorough, and well-reasoned Rule
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1925(a) Opinion, citing the record and relevant case law in addressing each of Appellant’s ineffectiveness claims. After a thorough review of the certified record, the briefs of the parties, the applicable law, and the PCRA court’s Opinion, we conclude that there is no merit to Appellant’s claims. Accordingly, we adopt that Opinion as our own and affirm the court’s denial of PCRA relief. See Trial Ct. Op., dated 6/28/17, at 10-13 (concluding, inter alia, that Appellant’s reliance on Commonwealth v. Nieves, 746 A.2d 1100, 1104 (Pa. 2002), is unavailing because (a) any alleged advice not to testify because of Appellant’s stutter was a matter of trial strategy and not the result of an erroneous statement of law made by counsel; and (b) the colloquy Appellant had with the court shows that his decision not to testify was made knowingly and solely by Appellant); at 14-16 (concluding that, in light of the overwhelming evidence showing that Appellant participated in the two planning sessions for the robbery, including his own statement to police, the presentation of Jenkins’ proffered testimony that Appellant did not participate in the planning would not have changed the outcome of the trial); at 17-19 (concluding that Appellant failed to satisfy the five-part test set forth in Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013), because he did not show that the character witnesses were available and willing to testify at trial, that counsel knew of the witnesses, and that the lack of their testimony was so prejudicial as to deny Appellant a fair trial; and, further, the
record belies Appellant’s claim that counsel knew of these witnesses at trial
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because after counsel indicated she would be calling only Appellant’s sister as a character witness, Appellant stated to the court that there were no other witnesses he wished to call); at 20-22 (counsel’s strategy in presenting Appellant’s sister’s testimony as the only character witness Appellant wished to present was not lacking in reasonable basis, and in light of overwhelming evidence against Appellant, he cannot show he was prejudiced by his sister’s impeached testimony).
The parties are instructed to annex the trial court’s June 28, 2017 Opinion to any future filings.
Order affirmed.
Judgment Entered.
( Joseph D. Seletyn, Es@¢% Prothonotary
Date: 6/15/18